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Saturday, January 18, 2020  Spokane, Washington  Est. May 19, 1883
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Eye On Boise

SupCourt race: McKenzie has never argued a case before the high court; Brody calls that concerning

One of the two candidates for the Idaho Supreme Court acknowledged in a televised debate Friday night that he’s never argued a case before either the Idaho Supreme Court or the Idaho Court of Appeals.

Curt McKenzie said, “My experience has been in front of our district judges or our magistrates. Those are the courts that most people see.”

His opponent, attorney Robyn Brody, said, “Experience is incredibly important. And the fact that Mr. McKenzie has never stood in front of the Idaho Supreme Court is something that concerns me greatly.”

McKenzie said he wrote some appellate briefs early in his career. “The legal analysis that I did on those cases, the kind of complex civil litigation that we practiced there, the extensive brief-writing that we did, is all important background for someone who’s going to be on the court,” McKenzie said, “but I also think it’s just as important to have a justice who has extensive experience actually practicing in front of those district judges and magistrate judges, who are the ones that most people are going to be in front of.”

Brody countered, “I’ll tell you the thing that really makes me different from Mr. McKenzie, and that’s 20 years of experience litigating in front of county commissions, planning and zoning, magistrate court, the Supreme Court nine times. … I’m talking about … 20 years of being in the trenches.”

McKenzie said his practice, when he was with a large law firm early in his career, was mostly either in federal court or out-of-state courts. “And then most of my experience in my own firm has been at the trial level, so I have that extensive experience and it’s a useful experience,” he said. “But I would say what I look for in a justice is not simply that you’ve argued a few cases before the Supreme Court, but that fundamental judicial philosophy that’s going to inform all your cases.”

McKenzie said he’ll “apply the text as it’s written,” and said his academic background as a graduate of Georgetown University law school, where at one point he met the late Justice Antonin Scalia, prepared him for that.

Brody, who holds both a law degree and a master’s degree in international management from the University of Denver, said she and McKenzie don’t really differ in judicial philosophy. “The things that he’s talking about, textualism and originalism … those are things that are bred into us in law school,” she said. “That’s the way we approach legal questions today. We ask, ‘What does this statute say,’ not, ‘What do we want it to say?”

She said, “Meeting Justice Scalia is an inspiration, but it’s not a qualification for this job.”

The two also differed over the significance of an Idaho State Bar survey of attorneys across the state this month, in which Brody was rated nearly twice as high as McKenzie in her qualifications to serve on the high court, including integrity and independence, knowledge and understanding of the law, judicial temperament and demeanor, and legal ability and experience.

McKenzie cited a Harvard University study that he said shows lawyers in general tend to be liberal. “It doesn’t surprise me that lawyers tend to lean towards someone who had served as president of the trial lawyers association over someone who most of them know only as a conservative Republican state senator,” he said.

McKenzie said the Republican leaders of both the Idaho Senate and Idaho House have endorsed him. “I am proud that those that I work the closest with have supported me,” he said.

Brody countered, “We’re talking about reputation, something that’s taken me 20 years to earn. That’s why the bar scores are what they are. It’s not simply a reflection of bias. It’s a reflection of people knowing me, and most importantly trusting me.”

The full hour-long debate, sponsored by the Idaho Press Club, the League of Women Voters of Idaho and the BSU School of Public Service and aired statewide on Idaho Public Television, can be viewed online here.

The two are scheduled to face off again tomorrow in a candidate forum co-sponsored by the Idaho State Bar, Idaho Women Lawyers and the Idaho Environmental Forum. It’s set for 4:30 p.m. at the Lincoln Auditorium on the lower level of the state Capitol, and is open to the public; it also will be streamed live online here.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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