Idaho Examiner: Supreme Court Voter Guide Now Online: Voters Have a Clear Choice "My Idaho...My Planet Rocks!"

A disturbing trend has developed in recent years in which sitting justices retire early so that their successors are selected by the Idaho Judicial Council (IJC) rather than the voters, thus circumventing the very constitution these justices have sworn to uphold.

The IJC interviews the applicants and forwards between two and four names to the governor, who appoints one from that short list. Noticeably absent from this cluster of decision-makers are the voters who are supposed to be entrusted with this choice.

Thus when a newly appointed justice stands for re-election, he does so as an incumbent, which is an enormous advantage at the ballot box. In general, the re-election rate of incumbents is extremely high; in Congress, for example, incumbents are re-elected well over 90% of the time.

In Idaho, elections for judicial offices are held in conjunction with the primary election, which means Idahoans will be voting for two seats on the Idaho Supreme Court on May 27 rather than in November.

Warren Jones and Joel Horton were both appointed last summer in place of early retirees Gerald Schroeder and Linda Copple Trout.

Jones is running unopposed for re-election, but Justice Horton has drawn an election challenge from John Bradbury.

Both Horton and Bradbury were kind enough to return the Gem State Voter Guide questionnaire, and we have posted their answers to the first section of the questionnaire, which pertains to the important issue of judicial philosophy.

(Technical problems have delayed posting the second section of the questionnaire, which deals with specific provisions in the state constitution. It will be posted once the technical problems have been resolved.)

Their answers on judicial philosophy are illuminating, and we urge you to forward this Daily Update to as many friends as possible for that reason. Voters often fly blind when voting for justices, but these candidates’ have shown a commendable willingness to let voters know the kind of approach they will bring to the bench if elected.

It turns out that voters will have a clear choice of judicial philosophy between Horton and Bradbury.

Both agree with the sentiments of Idaho’s founders, who were “grateful to Almighty God for our freedom.” The words in quotes are found verbatim in the very first sentence of Idaho’s state constitution, and it’s gratifying to see that both justices are willing to publicly acknowledge God and to recognize him as the source of the great gift of liberty that citizens of Idaho enjoy.

But on the critical issue of whether the state constitution is to be approached as a “living document” or whether a judge ought to bring a “strict constructionist” view to it, voters face distinct alternatives here. On a scale of 1-10, with “1” being “living document” and “10” being “strict constructionist,” Horton gives himself a “10,” while Bradbury circled both “5” and “6,” putting himself right in the middle of that sliding scale.

We asked the candidates, on a scale of 1-5, to rate their agreement with the following statement: “A judge’s role is to interpret and apply the law, not make it.” Horton circled “1,” indicating the strongest possible agreement with a limited role for judges, while Bradbury circled “2,” giving himself some latitude to legislate from the bench.

These differences in philosophy were confirmed in their choice of a favorite U.S. Supreme Court Justice. Horton selected Antonin Scalia, who is renowned as an opponent of judicial activism and a proponent of strict construction, while Bradbury picked Sandra Day O’Connor, who developed a well-deserved reputation as a swing vote on the court, occasionally siding with the originalists on the Court and at other times with the “living document” and activist crowd.

(On the choice of a U.S. president who “best represents your political philosophy,” Bradbury chose Harry Truman while Horton declined to answer on the grounds that his role as a judge is an apolitical one.)

So the bottom line is that voters on May 27 will have a clear choice when it comes to this particular seat on the Idaho Supreme Court. If they vote for Justice Horton, they will be casting a vote for an originalist view of the constitution and a strict construction of its intent, with the role of a judge limited to applying the plain meaning of the constitution and the law.

If, on the other hand, they vote for Mr. Bradbury, they will be casting a vote for a view of the constitution that tends to see it as a “living document” whose meaning must change and adapt to changes in society, a view which gives more latitude to a justice to use the power of his position to rewrite legislation that he finds out of harmony with the times.