Idaho Bench Project is a good idea, but it will have its work cut out for it

There's a lot of corruption and too little transparency in Idaho's court system

Back in 2013, the Idaho Freedom Foundation brought the country’s most comprehensive politician accountability system, the Idaho Freedom Index, into being. The Freedom Index covers legislative and executive action, and allows Idahoans to see quickly and easily whether elected officials in the legislative and executive branch are siding with freedom or statism. The index doesn’t rate lawmakers; it rates legislation, which in turn produces a rather comprehensive view of what all 105 lawmakers and the governor are doing.

a judge banging a gavel

But there’s one area of government that is still missing from the Index’s work, something that I always wanted to capture but never had the manpower: the Idaho Judicial Branch. Now comes the Idaho Bench Project, which promises to bring accountability to the system. Brian Almon of the Gem State Chronicle says the organization is a response to the questions often asked at election time for which there often are few answers. Who are these judicial candidates? Do they deserve my vote? Is there any place to find out the answers?

Brian co-founded the Idaho Bench Project with state Sen. Tammy Nichols.

Brian says:

“One big idea that Sen. Nichols had was to prepare a questionnaire for judges and judicial candidates, asking questions about their experience, perspective, and philosophy with regard to the law. What kind of questions would you ask judicial candidates if you had the chance?”

Surveys are fine, but I hope the group does even more. There’s a lot in the Idaho judicial system that is, frankly, corrupt, and surveys won’t fix it. For example, Gov. Brad Little appointed and the state Senate confirmed two lobbyists to serve on the Idaho Judicial Council which, among other things, interviews candidates as part of the process to fill court vacancies. As I noted before on this topic a year ago when the council was filling a vacancy on the state Supreme Court:

These two are not just any lobbyists; they're from the biggest lobbying firms in the state, as measured by influence and number of clients. Phil Reberger registered with the secretary of state's office to represent, as their lobbyist, 28 clients this year. Jason Kreizenbeck registered to lobby for 30 clients. Their clients' interests cover a wide range of issues from local government to health care to big business. … Exactly who is being served when lobbyists, who write and lobby for the passage of laws, entertain the question of which judge should get such an important appointment? 

Moreover, when it came time for Kreizenbeck to be confirmed by the Senate earlier this year, senators talked about the need to have judges avoid an appearance of conflict of interest. But for some reason no one thought it odd or worthy of note that they were giving a lobbyist the ability to take part in deciding who sits on the bench, and that itself might appear to be a conflict of interest.

Why didn’t lawmakers consider this question? To put it bluntly, Kreizenbeck’s clients give lawmakers a lot of money for their reelection campaigns and, as another Boise lobbyist told me, no one really wanted to bite the hand the feeds them when it came time to vote on his appointment.

But that’s not all that’s wrong in Idaho’s court system. Maybe the Idaho Bench Project could look at how:

• State Supreme Court justices retire midterm to avoid a public vote on the vacancy

• How in the rare event there is an election, the court has made it virtually impossible for the public to know where candidates stand (unlike other states where there is often vigorous, very well defined campaigns for judicial posts).

• The Judicial Council spends mere minutes with candidates for high court vacancies before offering an opinion to the governor about who should be appointed.

• The Judicial Council systemically deletes the videos of its interviews with judicial candidates.

• The court repudiates the idea of jury nullification when issuing instructions to jurors.

• Idaho’s court system makes it more difficult than others states for a plaintiff to have standing when it comes to matters of law not directly or specifically affecting the plaintiff.

• The court does not have a centralized database of judicial decisions and actions to make it easy for the public to hold judges accountable or understand what’s going on in Idaho’s courtrooms.

• The Idaho Bar Association is both an association and a state agency, and the bar is obsessed with diversity, equity, and inclusion; enrollment in the association is compulsory in order to practice in the state.

When it comes to Idaho’s court system, there’s a lot of work to do, a lot of changes that need to be made. I hope the Idaho Bench Project can bring the same transparency and accountability that the Idaho Freedom Index brought to the two other branches of government.