An independent judicial branch is the cornerstone of our democratic form of government. It receives its power from several sources. First and most important, Article III of the U.S. Constitution specifically calls for a separation of powers within which justices will retain their positions and receive remuneration. Second, the "Guarantee Clause" in Article IV implicitly refers to the principles of judicial independence. In addition to constitutional grounding, The Federalist Papers discussed and defined judicial independence on a personal, ethical level, focusing on the protection of individual liberty and equality. And later, in the State of Idaho, lengthy debate at the 1889 Constitutional Convention laid the groundwork for methods of selection of judges which would uphold fairness, equity, and impartiality in the Idaho judicial system. Over time, however, changes in political and social trends and behaviors have emphasized the need to modify previously accepted selection methods in order to maintain and strengthen judicial independence.

Idaho’s judicial selection method must reinforce judicial independence and accountability. To ensure this, an understanding of the following points is important in deciding which method of selection should be adopted: 1) pros and cons of each method; 2) implementation of the method; 3) historical precedence for making a choice of method; 4) adjunct requirements including but not limited to the composition and selection of a nominating commission; 5) the most efficacious length of tenure for judges, and 6) financing elections.

Merit Selection, often identified as the Missouri Plan, is used in many states with slightly different elements. The basics of Merit Selection include an appointive system in which a nonpartisan, broad-based nominating commission recruits and evaluates judicial candidates to determine which are best qualified, and submits the names of the most qualified applicants to an appointing authority, often the governor, who may choose only from those names submitted. Most of the states that use Merit Selection systems also provide for "retention elections" for judges who are appointed, in which a judge’s name must appear, unopposed, on the ballot at the end of a term.

Idaho uses a variation of the Missouri Plan for Magistrate Judges. The District Magistrates Commission nominates a short list of qualified applicants for appointment by the Commission. The appointed Magistrate Judge later stands for retention in an uncontested election. Supreme, Appellate, and District court judges are selected through nonpartisan elections, with appointment used in instances where a judge resigns midterm. In this case, the names of two to four nominees are selected by the Idaho Judicial Council and presented to the Governor for final appointment. Those appointed then run as incumbents at the next election.

LWVID supports Merit Selection because it has the ingredients most likely to support the concept of judicial independence, that is, to ensure an independent, fair, and competent judiciary to interpret and apply the laws governing us. Further, Merit Selection reduces political and special interest group influence, removes campaigning and the reliance on campaign contributions, curtails indebtedness to special interests, and speaks to eliminating the appearance of impropriety. LWVID believes these benefits of Merit Selection are potent enough to secure the support of legislators, members of the Idaho State Bar and citizens of Idaho.

LWVID recognizes that political challenges are inherent in any selection method. To implement an effective Merit System, strong guidelines must be developed for the judicial nomination commission, including objective criteria, both for the appointment of commission members and for the recommending of candidates for judicial positions. Commission membership should be balanced, with equal representation from legal and lay communities and the recognized political parties. Membership should also be representative of the state’s demographic groups. In addition, commission members should demonstrate an understanding of the qualities of mind germane to the judicial function. Members should not be beholden to the governor, legislature, or special interest groups. While the commission cannot be entirely free of political influence, its makeup and integrity are paramount.

Election of public officials is the tissue and bone of our democratic society. Judicial positions, however, are significantly different from legislative and executive offices, and therefore judicial selection methods must reflect that difference. Judges represent the rule of law, not the will of the majority. To ensure that judicial decisions are based on findings of fact and on the law in each case, rules of judicial conduct generally forbid candidates from making campaign promises as to how they would make decisions on the bench. And, because they are subject to rules about soliciting funds and what they may say, they are particularly vulnerable to misleading advertising and attacks on judicial independence by opposing groups.

LWVID believes judicial elections, partisan or non-partisan, present stumbling blocks to judicial independence. Recent judicial elections in Idaho have become not only more contentious, and more partisan, but also have involved increasingly large amounts of money. In 2002, special interest groups, seeking to place a justice amenable to their biases on the Idaho Supreme Court, undertook a last-minute TV campaign that made questionable claims about the incumbent.

Judges should not have to worry about the next election, and who has given how much money to their campaign. Judges should have the full confidence of litigants and the public when making decisions, and this confidence should not be compromised because of campaigns and contributions. Given these problems, qualified individuals may choose not to run for the judiciary. Political shrewdness does not necessarily equate with judicial wisdom. It is important for citizens to understand that, because the law protects people, judges must follow the law instead of popular opinion, financial or political indebtedness, expediency or political correctness.

Recognizing that the goal of establishing a Merit Selection system in Idaho may not be reached immediately, LWVID believes the existing nonpartisan election system of judicial selection can be improved, perhaps though public financing, with sources of funding such as taxes, check off boxes on tax forms, dedicated fines, or others. Also, as a stopgap measure, improvements could be made in Idaho campaign finance disclosure laws. The standards of allowable speech for judicial candidates are now in flux, in light of the U.S. Supreme Court’s Minnesota v White decision, which addresses the issues of campaign promises and freedom of speech in judicial campaigns.

Tenure for judges varies from two years in some states to life in others. In Idaho, tenure is four years unless appointment is made in the middle of a term. The general consensus across the United States is that longer tenure is better because it further protects judges from outside influences by reducing the frequency of the need to stand for election or retention.

LWVID believes judicial independence can be preserved only through public knowledge of the processes involved. It is evident that there is a need for greater understanding of issues such as how our judicial system works, the meaning of judicial independence, judicial rules of conduct, the difference between popular election of judges and other officials, judicial tenure, the various methods of judicial selection, and the qualifications of candidates for judicial positions. LWVID is committed to increasing public knowledge and understanding about judicial independence and accountability.