Idaho had the lowest percentage of women judges in the nation in 2012, at just 12 percent.
Since then, Gov. Butch Otter has appointed four women as district judges and two to the Court of Appeals — but he’s never appointed a woman to the state’s highest court, the Idaho Supreme Court, though Otter has appointed four Supreme Court justices.
The third-term governor has one more chance: Applications are being taken through July 25 for an opening on the high court to replace retiring Justice Joel Horton.
Otter says he’d never make his choice solely on the basis of gender. “I look for the person I think is going to do the best job,” he said. However, Otter added that it would “delight” him if, once all factors were weighed, “the best candidate was a woman.”
“I would absolutely delight in that,” Otter told the Idaho Press. “But I want the best jurist.”
Since 2012, Idaho has risen only slightly in the rankings. In 2016, the most recent year for which the National Association of Women Judges compiled the figures, Idaho ranked next-to-last for women judges, at 17 percent, ahead of Arkansas’ 15 percent. But it also was one of just two states — Iowa was the other — with no women on its highest court.
Nationally, 31 percent of state judges are women, as are 35 percent of the justices on state supreme courts.
Just three women have served on the Idaho Supreme Court since statehood: former Justices Cathy Silak and Linda Copple Trout and current Justice Robyn Brody, who was elected rather than appointed, and took office on Jan. 5, 2017.
Brody said she agrees with Otter that “the primary consideration” must be who is the best candidate. “But I think there’s a real opportunity for women in the judiciary today,” she said. She advised Idaho female lawyers: “Stick your hat in the ring — don’t be afraid.”
Currently, 28 percent of the members of the Idaho State Bar — lawyers in Idaho, who could qualify to become judges — are women. But the numbers are much higher among current Idaho law students.
Jeffrey Dodge, associate dean of students at the University of Idaho College of Law, said the law school’s student body this spring was 43 percent female, and the incoming first-year class that will start this fall will be 48 percent female.
“It’s a challenge for us in terms of trying to reach gender parity in our student body,” Dodge said. “It’s always been on our radar.”
Concordia University School of Law in Boise reports that 41 percent of its current student body is female.
Brody said, “I agree with the governor that the goal of every appointment has to be to select the best candidate. I also believe there will be another woman who sits with me on the bench.”
“I am impressed by the qualifications of the women who are applying for the vacancies,” she said, “and I know the ranks of talented, qualified female judges in Idaho is growing.”
Two of the four finalists for the last opening on the Idaho Supreme Court were women. Otter chose newly installed Justice John Stegner, a former 2nd District judge; the other three finalists were 7th District Judge Greg Moeller of Rexburg; Boise attorney Christine Salmi; and 3rd District Judge Susan Wiebe of Fruitland.
Copple Trout was the Idaho Supreme Court’s first female justice. She was appointed by Gov. Cecil Andrus in 1992 and served for 15 years, including seven years as chief justice; she was re-elected to full six-year terms on the court in 1996 and 2002.
Andrus appointed Silak to the Supreme Court in 1993, after previously making her the first woman on the Idaho Court of Appeals in 1990. For seven years, Idaho’s highest court had three men and two women presiding.
Silak, after being re-elected twice — once to the Court of Appeals, and once to the Supreme Court — was defeated by Dan Eismann in 2000.
Copple Trout retired from the court in 2007. After she stepped down, the Idaho Supreme Court was all-male for nearly a decade.
Just one other state, Iowa, had no women on its state’s highest court in 2016; Idaho was among three such states in 2012, when Indiana also had no female justices.
Copple Trout, Silak and Brody appeared together on a panel last fall sponsored by the Idaho Legal History Society, and Copple Trout noted that when she first started practicing law in Idaho in the 1970s, there were few women lawyers, let alone judges. But now, that’s changed.
Copple Trout said 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 elections. Judges who are appointed come up for election when their term is up.
“Don’t be afraid of elections,” Copple Trout told a crowd of close to 100 that was heavy on female lawyers and law students. “You can do it. Justice Brody demonstrated in a big way that you can.”
Brody, who was elected to the high court in a hotly contested race and won a runoff election in November of 2016, said she’s noticed that some Idaho judicial vacancies — particularly those outside the Boise area — don’t draw any female applicants.
“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.”
Silak noted that she was the first Idaho Supreme Court justice to lose her seat in an election since 1944, and that she won two judicial elections. “I am two for three,” she said with a smile.
Idaho’s second-highest court, the Idaho Court of Appeals, currently has two women judges: Molly Huskey and Jessica Lorello, both appointed by Otter, Huskey in 2015, and Lorello in 2017. The four-member Court of Appeals, like Idaho’s population as a whole, is split 50-50 between men and women; the U.S. Census estimated the percentage of women among Idaho’s population in 2017 at 49.9 percent.
The national comparisons on female state judges don’t include magistrate judges, who are appointed by a commission and hear misdemeanor, small-claims, juvenile and family-court cases. Of Idaho’s 92 magistrates, 23 percent are women.
Since Brody joined the Idaho Supreme Court in 2017, she’s been its only female member. But she said that’s never been an issue for her.
“My colleagues have welcomed me and treated me extremely well, and with great collegiality and respect,” Brody said. “And I very much enjoy being a member of the court.”
Before Stegner was appointed to the court, he was among the four finalists for the previous high court opening last fall.
“I tell women all the time that they’ve got to apply for judicial positions and take a chance,” Brody said. “Judges everywhere will tell you that getting one of these positions sometimes takes more than one shot.”
Ali Nelson, vice president of Idaho Women Lawyers, said her group is “committed to enhancing the diversity of the Idaho bench because the judiciary should reflect the citizens who come before the court.”
“IWL applauds Governor Otter’s demonstrated commitment to appointing women to the bench, particularly at the court of appeals and district court levels,” she said. “We continue to encourage qualified women candidates to apply for open judicial positions at all levels, and we hope that someday the Supreme Court will be more reflective of the diversity of Idaho’s citizenry.”
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter