Boise Weekly - "Judging Judges: Supreme Court election mixes politics and justice"

News Article

By:  Joel Horton
Date: May 21, 2008
Location: Boise, ID


Boise Weekly - "Judging Judges: Supreme Court election mixes politics and justice"

The line between politics and the judicial system has gotten blurry now that a State Supreme Court justice is being challenged for his seat.

District Judge John Bradbury is in the midst of a full-blown statewide campaign, drumming up public support for his bid for Justice Joel Horton's seat on the state's highest court. But his political-style stomping has drawn attention to how Idaho's judges are selected.

The state constitution calls for public election of judges, unless a judge leaves before his or her term is over. The governor can then appoint someone recommended by the state Judicial Council.

When judges are up for election, most voters know little or nothing about the candidates listed near the bottom of the ballot.

Bradbury claims the system is being abused by insiders. He has leveled accusations that the Judicial Council and the court are secretive, slow and imbalanced. At the same time, he's championing changes he wants to see in the court system.

He's earned some fans, securing the endorsement of the Idaho Statesman. But he's failed to gain the support of many lawyers and judges.

His approach to the issues even has Horton—who was appointed by Gov. C.L. "Butch" Otter to finish Justice Linda Copple Trout's term last year—wondering if Bradbury understands the Supreme Court job description.

"I don't know whether he misunderstands, or is relying on the public to misunderstand, the role of the Supreme Court justice," Horton said. "His approach completely ignores reality of how the Supreme Court even gets involved with the Legislature on these issues. We don't sit around over coffee and donuts in the Supreme Court and say, 'You know, this seems like a really good idea, we ought to pursue this initiative.'

Bradbury, a five-year district judge in North Idaho, said his job is to force the issues to the forefront.

"What I do know is if someone like me isn't elected, it never will happen," he said. "If we weren't having this election, you probably wouldn't even know some of these issues exist."

Those issues range from making court services more accessible and more affordable to making court and Judicial Council deliberations more open to the public.

Bradbury, 71, believes the practice of appointing judges to replace those who retire early only serves the interests of those in power. Bradbury was elected to office after challenging the incumbent judge. He spent most of his career working in Seattle and Alaska, retiring in 1989 and returning to his home state of Idaho.

"We don't want the governor creating the third branch of government," Bradbury said. "My view is if you don't like the [state] constitution, don't do an end-run around it. Do the honorable thing, have an initiative to amend the constitution. Ask people to vote on whether they want to give up their right to vote for their judges," Bradbury said.

He added that only political insiders have a chance at a judicial appointment. "If anyone thinks there aren't campaigns to get appointed, I could introduce you to a toothfairy with a bridge for sale," Bradbury said.

Otter still stands by his man.

"[Horton] was deemed the most qualified candidate by his peers," said Jon Hanian, Otter's spokesman. "[Otter] wants the best person for the job and that has been his yard stick and his compass."

As to appointments vs. elections, Hanian quickly points out that even justices appointed to office must, eventually, stand for election.

Retired Justice Trout makes no apologies for favoring judicial appointments, adding that allowing the governor to appoint her successor was part of her decision to retire from the court early.

"Merit selections are the preferable way to select judges," she said. She said she was "pleased" with Horton's appointment, but is not officially taking sides int he election.

Trout said she would like the state to adopt the same system used for magistrate judges for all judicial offices. Magistrates are appointed, and then the public votes whether to retain each judge.

While Bradbury has harsh words for the system, he said he doesn't have anything particular against Horton.

"I'm not running against Joel Horton, I'm running against a system and culture."

Horton, 48, is decidedly part of that system. He practiced law in Lewiston and Twin Falls before moving to Boise, where he worked with the Ada County Prosecutor's Office before becoming a magistrate judge and then a district judge.

The Judicial Council is the subject of much of Bradbury's ire. The seven-member group is headed by the chief justice of the Supreme Court and includes a district judge and two lawyers appointed by the Idaho State Bar Association and three citizens appointed by the governor. All six must be confirmed by the state Senate.

The council must also be half Democrats, half Republicans and represent different regions of the state.

Robert Hamlin, executive director of the council, strongly denies that appointments are part of a good-old-boys network and is needlessly secretive.

He said every active member of the Idaho Bar can put his or her name into for consideration, and the interview process is open to the public.

Trout believes the process actually allows for more candidates with a range of experience than elections.

Bradbury also criticizes the council for not making every complaint against a judge public. But Hamlin said this protects both the person who filed the complaint and the judge. Complaints become public if the council makes a recommendation for discipline, Hamlin said.

Horton said he agrees that judicial secrecy has its place, and worried that if all deliberations were public record, judges would pre-judge a case.

He added that the Judicial Council is governed by the Legislature, not the Supreme Court.

The Idaho State Bar recently released the results of a survey sent to its more than 4,000 members, asking them to rate the two candidates. Horton outscored Bradbury in every category.

Bradbury and the Statesman criticized the report since only 437 surveys were returned, with just more than half rating Bradbury.

The dismissal of the survey has raised the ire of some in the legal profession, who said it's a poor choice to disregard the opinions of those who have seen the candidates work.

"If you really want to know if somebody is a good judge or a bad judge, you really need to talk to the people who have experience with them," Horton said.

"I think there is a reason my opponent is attempting to take office not on the basis of merit, but on his skills as a politician," Horton said.

Bradbury has conducted a blitz campaign, taking time off to travel across the state. Horton said his court duties have prevented a similar style, but, "I'd appreciate your vote on May 27," has become his unconscious mantra.

Horton seems to take issue with the tack Bradbury is taking.

"He's talking about things that ... supreme courts simply don't decide," Horton said. "But he's not talking about the most important thing that we do, which is decide cases. To me, this selection ought to be about one issue and one issue only; that is, who is best qualified to serve as a justice of the Supreme Court."

But ruffling feathers doesn't seem to bother Bradbury.

"I've been swimming upstream most of my life," he said.