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What if Kavanaugh were up for an Idaho Supreme Court seat?

October 7, 2018

Steve Taggart

Last week’s national news was dominated by the drama around Brett Kavanaugh’s nomination for the United States Supreme Court.

Three women claimed he had sexually assaulted him. Kavanaugh fiercely denied the accusations. Democrats and Republicans maneuvered for political advantage. The highlight was Thursday’s high stakes cross-examination of Dr. Christine Blasey Ford and the nominee.

After that all eyes turned to Arizona Sen. Jeff Flake who first voted pass Kavanaugh through the Senate Judiciary Committee then surprised many by calling for a one week FBI investigation before the floor vote. GOP leaders quickly reversed course and asked for FBI to step in when Sen. Lisa Murkowski of Alaska joined Flake. With a two-seat Republican majority Trump quickly agreed.

It is fair to say that the entire Kavanaugh process has been a circus. But, the U.S. Constitution gives the president the ability to nominate federal court candidates, subject to the concurrence of the Senate. Since Robert Bork’s nomination in 1980s, the potential exists for a spectacle.

What if instead of being considered for the U.S. Supreme Court Kavanaugh was seeking a position on the Idaho Supreme Court and was facing the same claims?

In Idaho, justices obtain a position on the state Supreme Court one of two ways. First, they run for election. If one retires before the end of his or her term, a replacement is appointed by the governor.

If Gov. Butch Otter was making the appointment, applicants would first apply, be scrutinized by the Judicial Commission, and the finalists would be sent to the governor. If these kinds of accusations had surfaced, it might have affected the ability of the nominee to survive the scrutiny of the screening process.

Assume instead Kavanaugh was running for an Idaho slot. His accusers would have the opportunity to make their claims to the press which might be amplified by his opponent or opponents.

The focus would be on persuading voters, rather than a handful of decisive U.S. senators.

Both approaches allow candidates to be scrutinized and buffeted by opponents. Media coverage is critical. Both can be infused by politics.

Both appointments and campaigns can trigger media attention. Positive and negative ads have been run on Kavanaugh with the goal of pushing U.S senators to vote for or against. Running for the Idaho Supreme Court could draw favorable or unfavorable televisions ads, direct mail or social media efforts.

The key difference is who makes the ultimate decision. Under the federal system the target audience is senators. In the Idaho system it is potential voters and for an appointment the Judicial Council and the governor.

Is either superior? Appointments tend to favor those who have strong records and a philosophy compatible with the person making the appointments. Elections favor those who have the strongest campaign skills. Both approaches provide for scrutiny with different audiences.

The idea of a republic is that the public entrusts elected officials with the duty of making key decisions. Presumably they are able to exercise collective wisdom.

In contrast, a system predicated on voting trusts the collective wisdom of voters.

Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (www.MaynesTaggart.com). He has an extensive background in politics and public policy. He can be reached at staggart101@gmail.com. This column originally appeared on idahopoliticsweekly.com.

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