BOISE – Idaho will lose its only female Supreme Court justice this year, in part because of a judicial election system that has led to increasingly nasty and controversial campaigns.
“That certainly was a factor in my decision. … I think it tarnishes the judiciary,” said Justice Linda Copple Trout, who will retire from the court Aug. 31. She has served for 15 years, including two terms as chief justice. If she stayed on, Trout would be up for election again next year.
In her last re-election campaign in 2002, Trout was targeted in a last-minute TV attack ad campaign by an independent group, as was former Justice Cathy Silak two years earlier. Silak, the second woman to serve on the high court, was defeated.
“The attacks from outside sources were very unfair and untrue,” Trout said Wednesday in an exclusive interview with The Spokesman-Review. “I just think that’s appalling.”
Trout said she now lacks “the fire and drive and ambition to put myself through that again.”
Former House Speaker Bruce Newcomb said, “I think that’s a really sad statement for our system. … These elections anymore are so ugly.”
Newcomb said he and former House Speaker Mike Simpson tried to change Idaho’s election system for Supreme Court justices to a yes-or-no retention election system, similar to how Idaho elects magistrate judges. But they couldn’t get enough support in the Legislature.
Trout’s retirement from the court, at age 55, comes as a surprise, particularly as Chief Justice Gerald Schroeder also will retire this summer.
Trout is the last remaining member of the court appointed by former Democratic Gov. Cecil Andrus, and she often has been the swing vote in 3-2 decisions by the five-member court.
“I have moderate views,” she said. But Trout noted that many of the court’s decisions are unanimous or near-unanimous – and that has been true throughout her service, even as the court’s membership has changed.
“We’ve gone from an all Andrus-appointed court, to now all but me have been appointed by or elected during a Republican term,” Trout said. “And I have been amazed at the collegiality and the number of cases that are either unanimous or 4-1 decisions.
“I think there’s been, throughout that 15 years, a high level of agreement on cases.”
Trout said the timing of her departure – like that of Schroeder – is designed to allow the state’s Judicial Council to screen applicants to replace her. The governor then chooses an appointee from among the council’s recommendations. The new justice would stand for re-election as an incumbent in May 2008.
“It removes a level of partisanship,” said Trout, who as chief justice, chaired the Judicial Council for nearly eight years. “My experience is partisanship has no play in the decision they make of those two to four names that go to the governor. And I think that’s the way it should be – judges are nonpartisan.”
Senate Judiciary Chairman Denton Darrington, R-Declo, said Trout has a “commendable record” on the court. But he doesn’t think Idaho will change its election system.
“I think our system is not bad – it seems to work,” Darrington said. “Perhaps it could be and should be improved, but it wouldn’t be without considerable political opposition.”
Trout said, “I certainly think judges should be accountable. I don’t disagree with that at all. But I don’t see that a popular election is the way to accomplish that.”
She’s been through both systems, having served as a magistrate judge in the Lewiston area from 1983 to 1990, and as an elected district judge there from 1990 to 1992 before her appointment to the state Supreme Court, after which she was re-elected twice.
Trout said the kind of hotly contested elections Idaho has begun to see in Supreme Court races – complete with outside groups running disparaging ads against incumbent judges – “causes the public to think that this is a popularity contest.” It’s not, she said.
Plus, she said, “I think the public feels frustrated because they don’t know how to judge a judge. All of the standard things that people usually use as a measure when they go to the ballot box are not there for judges, because judges don’t take stands and aren’t for something unless it’s something like justice, or timely justice, or something like that.
“That’s really hard for the public, to judge whether or not somebody really would do a good job.”
Darrington agreed. “It’s really not right to ask a potential judge to take a political position on an issue they might face as a sitting judge,” he said, “because that politicizes the court, and that’s the very thing we ought not to do.”
Yet in the 2000 and 2002 elections, independent ad campaigns targeted Silak and Trout with political attacks on issues ranging from water rights to abortion.
“The fear really is from soft money. It’s from third parties,” Trout said, “which is something I never considered until it happened to her and then it happened in a big way to me.
“I truly thought I would run on my record and my merits and my opponent would as well, and people would judge as best they could on that basis. I never dreamed that I would see ‘Liberal Linda Trout’ on TV.”
In Trout’s case, unknown donors funneled $173,000 through Idahoans for Tax Reform for a barrage of television ads that Trout called “out-and-out lies about my record on the Supreme Court.” Her opponent that year, Coeur d’Alene attorney Starr Kelso, denied any knowledge of the ads, though they touted him with his official campaign photo and a family photo that he’d used on Christmas cards.
Trout said she favors something like Utah’s system, in which a group like Idaho’s Judicial Council evaluates justices and then makes the evaluations available to the public, which then votes in a yes-or-no election on whether to keep the justice in office.
The Judicial Council, when it reviews judicial candidates, conducts in-depth interviews and also reviews bar records, any records of judicial discipline, credit history, tax information and more. Trout said those are “the kinds of things that the average voter never hears about, would have no opportunity to find out about. All of that is available to the Judicial Council.”
The council also reviews ratings from attorneys of such factors as a judge’s intellect, demeanor and writing ability. If voters had such in-depth evaluations in hand, Trout said, “When the voter goes in to vote yes or no, they have some basis on which to make that decision. That seems to me to be a better process.”
A graduate of the University of Idaho and the UI College of Law, Trout joined the Idaho Supreme Court on her 41st birthday. She was Idaho’s first female chief justice and the youngest Idaho chief justice in more than 70 years.
After her retirement, she said, she’ll likely serve part time as a senior judge assigned to specific cases or tasks, and may also work in mediation and alternative dispute resolution. “It’s not really a retirement,” she said. “I’m not going to go sit in a rocking chair.”
She said she views her 25 years as an Idaho judge as “a privilege and an honor. … It’s been challenging and interesting. … It’s just been a great job.”