Rule of Law or Rule without Restraint? (or, in other words): “What Makes a good Judge?”

The announced retirement of U.S. Supreme Court Justice John Paul Stevens, along with last year’s retirement of Justice David Souter, has focused attention and discussion on the desired characteristics and qualifications of a Supreme Court Justice, given the enormous influence of Supreme Court rulings on many aspects of our lives.

A number of decisions and actions by our own Colorado state Supreme Court – and the potential for “retiring” four of the current Colorado Supreme Court justices in judicial retention elections this November – raise(s) similar questions about the desired characteristics and qualifications for those occupying Colorado’s highest court as well.

What makes a good judge?

An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.

Two Opposing Judicial Philosophies: Rule of Law vs. “Preferred Outcome” (Judicial Activism)

In our system of justice, judges are like referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence.  Like referees, judges are supposed to be impartial – taking no sides, applying the rules equally to both teams and all players.  Judges must not “play favorites”, let alone be “players” themselves.

An alternative view holds that judges should NOT hold themselves above or outside the debate, but instead should be “part of the process” – influencing the results to reach a desired outcome.  This view is not necessarily restricted to a particular political party or ideology; there are both “conservative” and “progressive” judges who rule based on what  they personally FEEL to be “right” or “fair” – rather than the stated intent and letter of the law.

In any event, a judge’s personal preferences or prejudices are not a reliable basis for a legal system.  Imagine playing a sport in which the rules are constantly changing during the game, at the whim of the referee.  Even worse, the referee is friends with some of the players on the other team. Sound like fun? Not so much…

Now imagine that you’re forced to play that sport – and your earnings, your property, your freedom, even your life, might depend on the outcome.  Welcome to the world of “Rule without Restraint” – or what is known as judicial activism:

…when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of the legislative branch, rather than limiting itself to the powers traditionally given to the judiciary.

Sound familiar?

American citizens are entitled to fair and even-handed treatment from their courts.  All are entitled to assurance that the law means what it says, so that they can make personal or business decisions on a reasonable, predictable, and firm foundation.


The American Bar Association (ABA) – an organization that may be politically suspect, but can at least be presumed to know something about judges and legal standards- has developed a “Model Code of Judicial Conduct” as a standard for “judging the judges.” Among the key “rules”:

RULE 1.1  Compliance with the Law

A judge shall comply with the law,* including the Code of Judicial Conduct.

RULE 2.2 Impartiality and Fairness

A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*


[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.


[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case.

It is clear that the four justices who are up for retention on the Colorado Supreme Court fall short of meeting these important standards.

This November, render your verdict– hold these unjust justices accountable for their judicial activism and their lack of judicial restraint.  Vote “NO” – do not retain Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey on the Colorado Supreme Court.

Be a citizen, not a subject – exercise your right to vote “NO” this November on the four ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off! ) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

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