Justice Faces Unusual Election Challenge Observers Worry About How Politicized Supreme Court Races Have Become

The dynamics of Idaho’s May 23 primary election suggest voters may be on the verge of ousting an incumbent Supreme Court justice for the first time in 68 years.

Justice Cathy Silak, the first woman appointed to an appellate court in Idaho, is being challenged at the polls for the second time in her seven-year tenure on the high court, this time by 4th District Judge Daniel Eismann. The race will be decided in the primary, not the general election in November.

While she defeated Wayne Kidwell by more than 24,000 votes out of 157,000 cast in 1994, this time there seems to be some potential for Silak to become the first sitting justice ever defeated for re-election in a nonpartisan race.

Her best hope might be that few voters will be aware she is even on the ballot, much less that opponents contend she has engaged in undue judicial activism. The focus of criticism is a 3-2 majority opinion she wrote last year upholding federal water rights in Idaho wilderness areas.

Even if Silak wins, some observers are worried about how politicized the process has become.

“It’s rarely happened, but now this is the third time in six years that we’ve had a major contest for a Supreme Court position with all the fund raising and political maneuvering that’s associated with a major statewide race,” Boise State University political scientist James Weatherby said.

“That should make people a little uncomfortable.”

In 1932, when court campaigns were openly partisan, Republican Justices T. Bailey Lee and Bertram S. Varian were defeated by Democratic challengers Edwin M. Holden and William M. Morgan. It was part of a national response to the Great Depression that swept Democrat Franklin D. Roosevelt into the presidency and interrupted years of GOP control of Idaho politics.

The Legislature made Supreme Court races nonpartisan in 1933, and since then incumbency has been dominant in the relatively rare cases where justices were challenged. And since the 1998 race that saw Kidwell defeat Mike Wetherell to succeed retiring Justice Byron Johnson was the first for an open seat on the court in 30 years, real contests have been anomalies for decades.

Silak, a former New York federal prosecutor married into a family of prominent Idaho Democrats, has been targeted by conservatives and two challengers from the right who have been unmistakably identified with Idaho’s overwhelming GOP majority.

Kidwell is a former Republican state attorney general and Eismann - a vocal critic of the Supreme Court - is openly supported by some Republican lawmakers and essentially launched his candidacy at a party event in eastern Idaho.

The Silak-Eismann contest is garnering more attention than usual because there is only one other top-of-the-ticket race of much consequence next month. The 1st District Republican congressional primary figures to be the biggest single reason for western and North Idaho voters to bother turning out, and the GOP electorate in that race could play a big role in the judicial election’s outcome.

Since traditionally low-turnout primary elections often attract only the most politically active, disproportionately Republican eastern Idaho voters also could help Eismann.

Albertson College political scientist Jasper LiCalzi said Silak’s incumbency should be enough to offset any advantage Eismann gains from voters identifying him as the Republican choice.

“On the ballot it will state that she is the current justice. And most people, if they haven’t heard anything, will keep the current justice in,” LiCalzi said. “I’ve got to believe if you did a poll, `Don’t know’ would win.”

Weatherby, however, said the lack of many other compelling contests and the role of water rights - sacrosanct in Idaho - makes this Supreme Court campaign different.

“I suspect most people going to the polls will be aware of this race,” he said. “The big question is how representative of the general electorate will those voters be?”