David Adler: Recent condemnation of judges is remarkable

February 20, 2014 

Withering criticism of judges is as old as the republic, and plumbs the depths of Anglo-American legal history.

Writing in the decade of the American Revolution, Alexander Hamilton warned of the need to confine “the trackless imaginations of judges’ minds.” For at least 800 years, English law scholars have condemned “arbitrary judges,” those who would decide cases according to their own will rather than by authority of the laws.

Candidates for public office, including sitting presidents — Lincoln, the two Roosevelts, Nixon, Reagan and Obama among them — have routinely criticized the reasoning of U.S. Supreme Court opinions. Some have publicly denounced their own nominees. Eisenhower lamented his nomination of Earl Warren to the Court: “the biggest damn mistake I ever made.” Politicians’ condemnations of judges rarely excite or surprise the electorate anymore.

But recent criticisms from Gov. Butch Otter and Idaho Supreme Court Justice Daniel T. Eismann challenging the ethics values and integrity of select judges in Idaho have struck many as beyond the pale. Gov. Otter’s dismissal of U.S. District Court Judge B. Lynn Winmill as “someone who might not share Idaho values” when it comes to appreciation of the market and freedom was so far from the mark as to be frivolous. Judge Winmill’s reputation is impeccable. His career on the bench reflects a steady adherence to the established jurisprudential canons of judicial performance.

Gov. Otter’s denunciation of Judge Winmill, an exercise in the practice in this political season of “otherizing” those with whom you disagree, is not likely as damaging to the reputation of the judiciary, indeed, the integrity of the judicial process as Justice Eismann’s intemperate attacks on his colleagues on Idaho’s highest court.

In a blistering dissent in a medical claims case delivered on Valentine’s Day, Justice Eismann accused his fellow justices of ignoring the law and imposing their own preferences and prejudices in the outcome of a case.

“There is a saying that hard cases make bad law. That saying is incorrect,” Eismann wrote. “It is the courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose.”

Justice Warren E. Jones, who joined the majority opinion written by Chief Justice Roger S. Burdick, called Eismann’s remarks “scurrilous and unfounded personal attacks upon the integrity and motivations” of the majority. Jones declared that there was “not a shred of evidence” to support Eismann’s assertions.

Members of the Idaho Supreme Court, like those on the U.S. Supreme Court, routinely express their disagreements with one another, often in chambers and certainly in their written opinions. Many dissenting opinions have been harsh and, occasionally, demeaning. What is remarkable about Eismann’s opinion is the fact that he accused his colleagues of engaging in “result-oriented jurisprudence,” a practice that would shred public confidence in the integrity of the judicial process and even the appearance of judicial impartiality.

Criticisms of judicial opinions by scholars, including those that seek to expose naked preferences and politics of various judges, are not uncommon. But it is rare to find a judge pulling back the curtain, and accusing his colleagues of engaging in rank partisanship. That’s because judges across America have assumed the responsibility of protecting the integrity of the courts. What becomes of the public perception of judicial detachment indeed, confidence in the judiciary, when an Idaho Supreme Court Justice declares: “the emperor wears no clothes?”

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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