In more than 150 years, just three women have served on the Idaho Supreme Court, and the three have some interesting insights into why that is, and what could change it.
Current Justice Robyn Brody, former Chief Justice Linda Copple Trout, and former Justice Cathy Silak spoke on a panel Thursday sponsored by the Idaho Legal History Society. Trout noted that when she first started practicing law in Idaho in the 1970s, there were few women lawyers, let alone judges.
“For many years, there just weren’t many of us,” she told a Boise audience of close to 100 that was heavy on female lawyers and law students. Now, there are more female lawyers, but there’s still a lack of female applicants for many of Idaho’s judicial posts.
Trout said that when she was chief justice, the court did a survey and found that the biggest reason female lawyers cited in not applying for judicial positions in Idaho was the prospect of having to run in an election. “Don’t be afraid of elections,” she told the crowd. “You can do it. Justice Brody demonstrated in a big way that you can.”
Brody, who was elected to the Idaho Supreme Court in a hotly contested race last year, said there have often been no female applicants for Idaho judgeships when vacancies have occurred in the past decade – particularly in parts of the state outside the Boise area. “If you’re looking at the judiciary, I would encourage you to look at other communities,” she said. “The rural counties are a great place to practice. … You may find opportunities you never dreamed of.”
She added, “If you want to be on the Supreme Court, you’ve got to tell people. … You have to tell people that that’s what’s in your heart.”
Silak noted that she was the last woman appointed to the Idaho Supreme Court – and that was 25 years ago. Recalling her Idaho Judicial Council interview for the appointment, she said, “It was the most nerve-wracking experience – I shouldn’t say that.” To laughter, she said, “You all should apply.”
Idaho justices can join the court in two ways: through appointment, when there’s a midterm vacancy, which requires screening by the Idaho Judicial Council and appointment by the governor; or through election, when a justice leaves office at the end of his or her term.
Silak also urged women not to be afraid of elections – though she was ousted from the Supreme Court in a contested election in 2000, losing to Justice Dan Eismann, who retired last month. However, she said, “I am the only person since 1936, I think, to be defeated as a Supreme Court justice, so it’s not that big of a risk, and my election was extremely unusual … so don’t let that stop you.”
She noted that was the third time she ran in a judicial election, including a contested election for her second term on the Supreme Court, and she won the first two. “I am two for three,” she said with a smile.
Silak echoed a recent call from retired Chief Justice Jim Jones for a change in Idaho’s judicial elections, to move them from the May primary to the November general election. She noted that she was appointed by then-Gov. Cecil Andrus, a Democrat. But when she stood for re-election for the nonpartisan post, it was in a primary election – in which 86 percent of those voting were Republicans. “That’s when all the real partisans show up,” she said. “This can be fixed by our Idaho state Legislature – it does not require a change to our constitution.”
Currently, if no candidate gets a majority in the primary, the top two proceed to the November general election. That happened last year; Brody won both.
Brody said she preferred the electoral process to applying through the Judicial Council and seeking appointment. “I’m taking my chances with the people every single time,” the former Rupert attorney said. “I ran my practice that way, and I’ll run my campaigns that way, too.”
Fourth District Judge Nancy Baskin, who served as the moderator for the panel discussion, asked the three when they thought there would be “enough” women on the Idaho Supreme Court, citing U.S. Supreme Court Justice Ruth Bader Ginsburg’s famous comment that enough women on the U.S. high court would be nine – every seat, just as men had held every seat for so much of the nation’s history.
Brody said, “When it’s normal – when this isn’t a historic event.” Her comment drew applause. Both Trout and Silak agreed. “I don’t think it’s the numerical number that makes a difference,” Trout said. “It’s the fact that it’s routine.”
Baskin commented to applause, “I would say we need at least three, and I’d take all three of you at the same time.”
The Idaho Supreme Court has five justices.
Silak said when she first applied for the high court, Gov. Andrus had made it known that he wanted to appoint women to the court. “I advocate for our political leaders to take a page out of Gov. Andrus’ book and prioritize opportunity for women and minorities,” she said. “It’s important for judges to reflect society.”
On driving a Ford Pinto …
One of the biggest laughs of the evening came when Baskin teased Brody about having owned not just one, but two Ford Pintos. Brody said, “My father always told me that if we all drove Ford Pintos, the world would be a much humbler place.”