Why is Idaho’s Supreme Court Liberal After Years of Republican Rule? (with Update)

Idaho’s Supreme Court has loomed large in recent years. It has blessed the state’s controversial re-districting plan. It threw out the legislature’s attempt to reform the initiative and referendum process.

Now the Idaho Supreme Court will rule on Idaho’s new Heartbeat Law.

Idahoans may wonder why, after more than a generation of Republican rule in Idaho, Idaho’s Supreme Court is hostile to conservative measures. The answer partly lies in Idaho’s way for selecting judges. In the late 1960s, Idaho placed judicial appointments in the hands of experts instead of in the political branches of the state or in the people. As a result, Idaho’s Supreme Court reflects the current legal class instead of reflecting the politics or the people of Idaho. Thus the Supreme Court is staffed mostly with liberals and establishment figures.

At the national level, presidents nominate candidates and then the Senate confirms by majority vote. So the Supreme Court follows the election returns, to some extent, at the national level. When a justice like David Souter or John Roberts betrays conservatives, the betrayal is personal. Conservatives tend to blame the turncoat justice or to think the president did not adequately vet the candidate.

In Idaho, the bias against conservatives is more systematic. Idaho’s bi-partisan Judicial Council acts as the gatekeeper for the selection of judges. Here is how it works. Potential judges and justices apply to the Judicial Council’s when there is an opening in Idaho's judiciary. The Judicial Council then interviews the applicants for character and integrity. It provides the governor a list of two to four judges for every opening. Governors must then select Supreme Court justices, Court of Appeal Judges, and district judges from the Judicial Council’s list. Once magistrate judges are on the bench, they are subject to retention elections (as all will note from the lengthy list of retention questions on Idaho’s ballots). People can run against judges on the District Court, Court of Appeals, and Supreme Court, though rarely does anyone do that.

Idaho statute provides for who shall sit on the seven-member Judicial Council. The Chief Justice of the Supreme Court chairs the Judicial Council. Three members, including a district court judge, are appointed “by the board of commissioners of the Idaho state bar.” The other three members are non-attorneys, appointed by the governor. The Judicial Council aims to be non-partisan. Not more than “three of the permanent appointed members shall be from one political party.”

Idaho’s bar therefore has a formal role in determining who sits on Idaho’s judicial benches. And Idaho’s bar is, like the state bars in all states, notoriously liberal. Other members of the judicial council are establishment figures. Currently, for instance, the non-attorney members of the Judicial Council are J. Philip Reberger, former aid to Dirk Kempthorne; Elizabeth Chavez, former Democratic legislator in Idaho; and Kathy Simpson, wife of 2nd District Congressman Mike Simpson. The attorney members include an old president of the state bar (Reed W. Larsen) and a past president of the Idaho Trial Lawyers Association (R. Bruce Owens), in addition to a district court judge (Lamont Berecz).

A Supreme Court Justice selected was in 2018. According to the Council’s annual report, the Judicial Council received eleven applications for the position. It handed Gov. Otter a list of four candidates, from which he selected Gregory W. Moeller.

The bi-partisan nature of the appointment process seems to be based on the idea that there is a sphere of our system immune from politics. While the Judicial Council may make sense for the selection of District Court judges or trial judges, it makes sense when the nature of the office is inherently political. As a result, it is easy for elites and insiders to control the entire process, without the need to reflect the political leanings of the state. And that has mattered most at the Supreme Court level.

The Judicial Council reflects a fundamentally naïve view of the law. Supreme Court justices must often answer fundamentally political questions under our form of government. Idaho’s Court looks like Idaho’s bar, not like Idaho. Bi-partisan commissions make no sense if governments are interested in maintaining conservative policies in a state.

Several errors in the original essay have been corrected, including a statement about who the latest appointment was and an error about who is subject to retention elections.