The People Just Aren't Smart Enough, I Guess

An astonishing admission that appeared in the May 25, 2007 Idaho Statesman:

Gov. Butch Otter will pick two Idaho Supreme Court justices this summer.

Justice Linda Copple Trout will join Chief Justice Gerald Schroeder in retiring before her term ends so her successor can be appointed by Otter, not chosen by voters.

Trout, 55, said Thursday that she will retire Aug. 31 after more than 25 years as an Idaho judge, 15 on the Supreme Court. She said she decided after her last election that she didn't have the energy for another campaign and she is more comfortable having the Idaho Judicial Council screen possible successors.

"There are a lot of problems with the system, but the biggest problem is people don't know how to make a choice on who would make a good judge," Trout said. "I want to give enough opportunity for my successor to get in there and get some experience and let people see them and their work product before they run for the seat."

Maybe she should have revised the state constitution while she was at it to abolish election of legislators, too. The people probably don't know how to make a choice on good legislators, either.

Now, if we were starting from scratch on writing a state constitution, I could see an argument for debating the merits of appointing judges vs. popular election. The U.S. Constitution provides for appointment of judges who enjoy lifetime tenure (with a few exceptions). If judges were occupying the rather limited role envisioned by the Framers, there might be a strong argument that elitism would be a counterbalance to the risks of runaway democracy. But Justice Trout isn't debating this before a state constitutional convention. She is engaged in a sleight of hand maneuver to subvert the clear intent of the Idaho Constitution--that the voters pick justices. See Art. V, sec. 6 of the Idaho Constitution:

The justices of the Supreme Court shall be elected by the electors of the state at large.

It is highly inappropriate for the Idaho Chief Justice to intentionally subvert the language of the Idaho Constitution so as to prevent the voters from selecting a new justice.

As I said, if judges engaged in the limited role that the Framers apparently intended, it might not matter so much if they were an appointed elite. But increasingly, judges have become superlegislators, breathing life into the "dead hand of the past" like Frankenstein's monster, to impose their values on the majority with little or no basis in the Constitution and sometimes, as in Lawrence v. Texas (2003), contrary to it. It is therefore all the more important that the people should have a direct voice in selecting someone who may choose to overrule the other elected representatives of the people. After all, as Idaho Constitution, Art. I, sec. 2 points out:

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.

Thanks to Bryan Fischer at Idaho Values Alliance for bringing this astonishingly open statement of judicial elitism to my attention.