Where Do (Colorado) Judges Come From?
Like most states, Colorado has a "Merit Selection" plan of choosing judges. Before 1966, judges were elected. A coalition of groups campaigned for an amendment that would basically take judges out of the political process. Judges wouldn't have to raise money for campaigns; they wouldn't have to makes promises and be beholden to any groups or individuals. But under the Merit Selection plan, voters would be able to pull a lever to "retain" or "do not retain" judges during the general elections. Judges don't "run" against anyone; their names are on the ballot individually.
Here's how our system works:
No one becomes a state judge in Colorado without being thoroughly screened by a cross section of people in their community who can evaluate experience, temperament and knowledge.
When there is a judicial vacancy, interested attorneys may apply for the position. Their names and applications are sent to a nominating commission in their district. The commission is composed of four laypeople and three attorneys with no more than four members in one political party. Members of the commission are chosen by the Governor, Attorney General and Chief Justice of the Colorado Supreme Court. The commission sends two or three recommendations to the Governor and, after interviews and investigation, he appoints one of the nominees to fill the vacancy. Judges in Colorado come from all kinds of backgrounds, including the district attorney's office and the public defender's office.
In Denver, the County Court Judges are chosen in a similar way, except that the names of candidates go to the mayor instead of the governor.
Once chosen, a judge serves a provisional term of two years and then his or her name is on the next general election ballot. After that first time before the voters, County Court judges are up for retention every four years, District Court judges are up every six years, Court of Appeals judges every eight years and Supreme Court judges every ten years.
To help voters in their decision of whether to retain or not retain a judge, evaluations, by law, are done periodically. These are then publicized.
Evaluations of judges are done by The State Commission on Judicial Performance, which is composed of six non-lawyers and four lawyers. Members of the commission are appointed by the Chief Justice of the Colorado Supreme Court, the Governor, the Speaker of the House and the President of the Senate. Each judicial district has a local judicial performance commission, which is appointed in the same manner. The evaluations give voters something to go on, and the process also gives feedback to judges so they can continually make improvements.
In fact, beginning with the next election, evaluations of judges will be included in the "Blue Book," published by the legislature and sent to every registered voter in the state.
This system is a lot more thoughtful - albeit more complex -- than having someone make a stump speech, spend time courting political contributors, and proclaim you should vote for them.
The Colorado system of selecting and retaining judges has given us a state bench second to none in this country. The integrity of Colorado state judges is beyond reproach. Who can remember even one scandal involving a state judge in the past 30 years? They face caseloads that continue to grow in numbers and complexity. The goal of the Merit Selection plan is to keep judges independent, so that they will make decisions based upon law, not on pressure, political whim, or the amount of campaign contributions.
We believe our Merit Selection system is thorough, thoughtful and fair. Right now, there are various groups examining ways for our courts to run more efficiently, to improve the jury system, and to serve the public better.
Almost always, someone wants to either change or go back to an older system. When considering a change, here are some things to think about.
Should We Return to Elections?
*Following the American Revolution, judges were appointed to the bench. With the advent of Jacksonian Democracy, the emphasis was that everyone, including judges, should be popularly elected and subject to the will of the people. Opinion is now swinging back. Looking at the judicial branch in the same light as the executive and legislative is a mistake. Judges must decide cases based on law, not what they perceive to be the majority viewpoint. Colorado has had Merit Selection since 1966, as do the majority of states.
*Merit Selection is a deliberate process where an attorney, who might not have the inclination or talent to campaign, can become a judge and within a short time, be evaluated, and have voters decide whether to "retain" or "not retain" him/her.
*Elections always mean raising campaign funds. Lawyers would donate to a judge's campaign, which gives the perception that judges' decisions can be purchased.
*It's said that voters don't get enough information about judges. Now, in Colorado, all state judges are evaluated by independent commissions (composed of non-lawyers and lawyers). These commissions solicit opinions and issue public reports. These evaluations will be printed in the Blue Book that goes to every Colorado voter.
*Campaigns take time - it would be detrimental to the already overloaded judicial system to have judge candidates campaigning.
*The notion of elections, after 30 years of Merit Selection, seems ludicrous. What campaign promises would judges make to voters? Anything besides a vague promise to be fair means the judge is deciding something before a case goes to trial. Judges shouldn't be advocates.
*If we want to attract and keep highly qualified individuals who will be impartial and who won't succumb to the will of influential individuals if that is contrary to the law, then Merit Selection is the system to embrace.
What about Term Limits?
*The concept of term limits for politicians is a popular one. But it's a concept that doesn't work with judges. Judges learn to be good judges by judging. They need experience with the evolving and complex system we call "the law." (You wouldn't ask a surgeon to step aside after a certain term to let new surgeons have a chance....) Judges need time to develop expertise.
*We already have the opportunity for limiting a judge's term. After a judge is appointed, he or she is on the ballot within two years. After that, voters have a chance to "retain" or "not retain" that judge (every four years for a county judge, every six years for a district judge, every 10 years for the Supreme Court). We have independent Judicial Performance Commissions in place to educate voters so that terms could be limited intelligently.
* There's another control in the Judicial Disciplinary Commission - it can discipline judges, remove them from the bench or encourage them to retire regardless of how long they have served or have until their next retention election.
*Applicants who seek positions on the bench are making a career change -- when they become judges they lose clients whom they may have had since the first day they began practicing. Imagine how difficult it would be for them to get their clients back after serving on the bench for a number of years.
*There could be the appearance of impropriety when a judge is nearing his/her term limit and is making a ruling or rendering a decision on a case where one of the law firms involved is later that judge's employer.
*Term limits for state politicians can't be compared to term limits for judges. Our legislators usually have another job; being a legislator is only part-time. They never leave their other jobs, so it's not a question of whether they can go back to it when they reach their term limit. Judging is full-time. Also, if legislators reach a term limit in one office, they can run for another office.
What about Senate Confirmation of Judges?
*Attorneys who apply to be judges would be very reluctant to have their names in front of a legislative body for what often turns out to be a long time. Their firms wouldn't like this uncertainty and neither would their clients. They couldn't set trials or take on certain cases. Few would be willing to be in career limbo like this.
*This would erase all the effort spent toward getting judges out of the political process (where they might be indebted to a certain party). It's hard to imagine this not turning into a very political process.
*We don't need it. We have a deliberative, thorough process right now for selecting judges. The commissions who send names to the governor are balanced politically and have both lawyers and laypersons on them. Why would the Senate be better able to investigate the candidates than the governor is? If the candidate had to come before the Senate to be questioned, what would they judge him/her on? As in the argument against elections, judges shouldn't have agendas and they can't be advocates.
*If provisional appointments are suggested as part of a Senate confirmation plan, would the decisions made by a judge who has not yet been confirmed have less validity?
*What experienced, successful attorney would give up his or her practice for a provisional term on the bench, knowing that the job might end and he/she would have to build a law practice all over again?
Many citizens complain they don't know how to vote for judges when they see their names on the ballot. In the past, information hasn't always been easy to obtain. Now, with the evaluations printed in every Blue Book that all voters get, making a decision should be easier.