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OPINION: Vital importance of The Rule of Law

by PETER ERBLAND/Guest Opinion
| January 5, 2024 1:00 AM

Here is a quiz: You are in court trying to vindicate your rights. What kind of judge would you like to decide your case? One who is unbiased, neutral, and nonpartisan? Or one who has the financial support of any political party and who has publicly expressed his or her views on any number of social and political topics? Go to the head of the class if you chose the first kind of judge. And give yourself extra credit for recognizing the profound difference between the two.

Fortunately, here in Idaho we have a judiciary that is nationally recognized for its impartiality and independence. And even though the compensation for our judges is some of the lowest in the nation, we continue to produce excellent judicial candidates who are motivated by a commitment to public service. Unfortunately, changes are in the wind due to a hyper-partisan legislative majority seeking to exert control over our courts. Currently, judicial vacancies can be filled by appointment by the governor after screening and selection by the Idaho Judicial Council, or in a nonpartisan election. 

In the last legislative session, bills were passed making incremental but significant changes to the gubernatorial selection process. For example, one provision of Senate Bill 1148 increases the number of Judicial Council members so that a majority can now be from a single party. Give yourself additional credit if you can guess which party our legislature would like to see control the Judicial Council.

The second way to fill a judicial vacancy in Idaho currently is through a nonpartisan election. In that process, a candidate cannot run as a Republican, Democrat or be sponsored by any political party. The nonpartisan election process has produced many excellent judges, who maintain their independence. But, once again, those who seek control of our courts want to change this process. Idaho’s GOP platform openly supports and seeks partisan judicial elections. A critical thinker might ask why is that such a bad thing? After all, the GOP platform supports many fundamental Idaho values. The problem is with those who currently control the Idaho GOP. 

To see how this works in practice, simply look at the decisions of the local GOP’s “rated and vetted” candidates for North Idaho College Trustees, Community Library Network Trustees, and other supposedly nonpartisan boards in our community. With partisan elections for judges, many ethical candidates will refuse to be “rated and vetted” because of their allegiance to the rule of law instead of a group of self-appointed partisans promising political and financial campaign support in return for commitments on ruling in any given hypothetical case. 

The cry to “rein in the courts” through partisan elections will ultimately cause the public to regard judges as what former Idaho Court of Appeals Judge Don Burnett refers to as “politicians in black robes.” The late (and great) former United States Supreme Court Justice Sandra Day O’Connor warned of the mistrust of the judiciary that can be brought on by partisan electioneering and campaign fundraising, noting that the “perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”

So, back to our quiz on the kind of judge you would like to decide your case. You and I already have our best choice — an independent and impartial judiciary resulting from a process that has worked well for many years. Tell your legislators to stop trying to "fix it." It’s not broken.

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Peter Erbland has practiced law in Idaho for over 40 years. He is a founding member of North Idaho Republicans.