Ordering the Courts: Right Wing Attacks on Judicial Independence in 2000


An allegedly nonpartisan race for a position on the Supreme Court between incumbent Justice Cathy Silak and Fourth District Judge Daniel Eismann degenerated into a nasty political battle. The campaign succeeded in defeating an incumbent judge and, according to some observers, pushed a sitting judge to reconsider her decision in a controversial environmental case.

Initially, Silak was targeted for her majority opinion upholding a lower court’s ruling that the federal government had rights to unclaimed water in certain wilderness areas. Water rights are an important issue in Idaho, and although she was initially attacked for this decision during the campaign, the range of issues quickly broadened to include her past work with the ACLU, as well as her suspected positions on evolution, partial-birth abortion and same-sex marriage. Some of Eismann’s supporters conducted push polls distorting Silak’s positions and decisions, while others ran an ad saying, “Will partial-birth abortion and samesex marriage become legal in Idaho? Perhaps so, if liberal Supreme Court Justice Cathy Silak remains on the Idaho Supreme Court.”30 The Idaho Chooses Life Political Action Committee bought an ad endorsing Eismann and asserting that Silak was the founder of the ACLU in Idaho, a claim the Silak campaign said was inaccurate.

Eismann accepted large donations from members of the Idaho Christian Coalition and answered a questionnaire distributed by the group, which some critics argued violated the Code of Judicial Conduct. The questionnaire contained thirty-one questions, including “Do you believe that God inspired the writing of the United States Constitution?”; “Do you believe in the fact that God created all the heavens, earth, creatures, plants and man?”; and “Do God’s Laws or Natural Laws have a high [sic] authority than laws enacted by the United States Congress or the Idaho Legislature?”31 Eismann also publicly stated his opposition to abortion, as well as his views about creationism, saying, “I can prove scientifically that evolution has not and cannot occur.”32 Eismann defeated Silak in the primary in May, and with no other opponent, under Idaho’s electoral system, there was no November election.

Not long after Silak’s defeat, Chief Justice Linda Copple Trout, who had originally sided with Silak in the 3-2 decision in the above mentioned water-rights case, reversed herself when the court reheard the case in October of 2000. Trout is up for re-election in 2002, and critics suspect that Silak’s defeat may have influenced Trout’s reversal. “Considering all the circumstances, it’s difficult to believe that politics didn’t play a role in the chief justice’s decision to switch her vote,” said John Echeverria, director of the Environmental Policy Project at Georgetown University Law Center.33

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