Vol. 27, No. 10
CBA President's Message to Members
Voting "No" On Judges = No Justice
by Ben S. Aisenberg
No, Boss, that isn’t the way we do it!
In 1996, did you notice those yard signs popping up like late summer dandelions? Their message: VOTE "NO" ON ALL JUDGES. If this happens in 1998, please don’t just drive by, cuss under your breath, change the radio station, and forget them. Very few people understand how judges are selected and retained. In an earlier article,1 I told the story of the judge whose nephew, voting for the first time, proudly told him that he voted for him and against all those other judges. We, as lawyers, have to explain over and over to everyone we know, including our friends and family, how our system works. What is even scarier is the story I heard a few weeks ago wherein a respected lawyer with a well-known firm said, "I always go in the voting booth and vote ‘no’ on all the judges, just to keep them honest."
The number of voters who vote "no" on all judges is increasing. In 1980, I was a member of a CBA Judiciary Committee. We took it for granted that 20 percent of the electorate automatically vote "no" on all issues, including the retention of judges. The average retention rating for a judge at that time was 80 percent. We became concerned in 1992 when the percentage dropped to between 72 and 74 percent. Based on the 1996 election, we have an even greater concern in that, in the Denver metropolitan area and at the Supreme Court and Court of Appeals levels, no judge or justice running for retention received greater than a 65 percent affirmative vote. The percentage had dropped by approximately 8 percent in a four-year period. This means that an individual judge who failed in a bid for retention was not voted out by greater than 50 percent of the vote, but by 15 percent of the available 65 percent. It also means that we are getting closer and closer to a time when that percentage may fall under 60 percent, and possibly under 50 percent. If this happens, it would mean that a judge who is not retained would not be voted out based on his or her lack of merit. The thought is really scary.
The concept of voting "no" on all judges for whatever reason destroys the very basis of our retention system. Most of our judges do a superb job—they are conscientious and work very hard. To vote those judges out indiscriminately, along with those judges whom the public really wants out, debases the retention system. To lose some of our competent judges based on an unthinking negative vote makes no sense.
Retired District Court Judge Bob Fullerton followed a practice of asking jurors why they vote "no" on either all or some judges. The responses he received were: (1) they vote "no" when they are not adequately informed; (2) dissatisfaction with the judicial system; (3) the fact that judges aren’t tough enough in sentencing; (4) they are unhappy with large verdicts; and (5) like the aforementioned lawyer, they vote "no" to "keep judges on their toes."
What Can the Bar Do?
What can we, as a Bar, do about it? First, we can talk about the system and urge people to, of all things, discriminate. Remind your neighbors that the Blue Book sent to all voters before the election will contain the Performance Commission ratings, and, thus, voters will be given pertinent information on which to base their choices. There will be articles in the newspaper. Take any opportunity you can to spread the word, and do it in terms that people can understand. Participate in the speaker’s bureau that encourages members of the Bar to talk to various civic and religious organizations.2
Judges can participate in the process by making themselves more visible and letting the public see them as they really are. They can point out, as can the Bar, the misconceptions that exist in the public’s mind, i.e., that the judges are responsible for large verdicts (in fact, judges act as a restraint on large verdicts in the form of remittitur, citing the MacDonald’s case as an example), that there are other methods of keeping judges on their toes rather than an across-the-board "no" vote, and educating the public as to the factors that go into the criminal sentencing process. All of us, collectively, need to get the word out so that a judge is rated on his or her individual merit, rather than generically grouping judges based on uninformed judgments. We must foster an informed electorate. It is only by taking an active role in the judicial retention process that we can ensure the continuance of the high quality of our judicial system.
1. See Aisenberg, "The Independence of the Judiciary," 27 The Colorado Lawyer 25 (Aug. 1998).
2. For information on the CBA Speaker’s Bureau, call Diane Hartman, Director of Communications, at the Bar Association office.
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