Applicants for Colorado Supreme Court vacancy down to final 3: Marquez, Prince, Russel are potential picks to replace Mullarkey
The front page of Wednesday’s Denver Post heralded the late-Tuesday announcement of the list of three names from which Governor Ritter will select the replacement for outgoing Chief Justice Mary Mullarkey, who announced in June that she would resign rather than be held accountable by Colorado voters this November. The article (“Three finalists emerge for Colorado Supreme Court vacancy“) concludes with comments by Clear The Bench Colorado director Matt Arnold critiquing the lack of transparency and public accountability in the closed-door process for evaluating potential nominees to the Colorado Supreme Court, following up on an article earlier this week (“No More Secrecy in Colorado Supreme Court judicial hiring“) calling for improvements and reform in the selection/nomination process.
“These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this next session.”
Unfortunately, Colorado citizens know more about the process of picking the Pope than about how our state selects nominees to judicial office.
This is unfortunate – because, despite some flaws (most importantly, a lack of transparency and public accountability – secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).
However, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary and undermines the right and ability of Colorado Citizens to hold our judicial branch officials accountable – leading to ignorant statements such as “why bother to vote out the bad ones? They’ll just replace ’em with more of the same.” (That attitude reminds me of nothing so much as someone clinging to an abusive domestic relationship – putting up with the beatings because it’s what they know. Step One: remove the source of the abuse. Step Two: make better choices for the future…)
So how does the Supreme Court Nominating Commission try to make ‘better choices’ for replacing outgoing justices?
Clear The Bench Colorado published an overview of the judicial selection process (“Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections – who decides?“) both online and in print (next appearing in the September edition of The Constitutionalist Today, due out next week). More information about the commission’s inner workings has since come to light, thanks to some former commissioners offering their views in response to our articles and comments earlier this week. Some details (such as the current commission’s votes to select the just-announced nominees, any particulars on their deliberations, or the names of other applicants) will remain unknown unless any of the current commissioners step forward or otherwise release the information.
By the Numbers: How the Judicial Selection Process works
- On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).
- Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear). Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’). Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.
- Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
- Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees). The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present. Multiple ballots may be (generally are) necessary. (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated – ensures that any finalists MUST receive at least one vote from multiple party affiliations).
- The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.
ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).
The role of the ‘ex officio’ chair of the commission – retiring Chief Justice Mary Mullarkey, who presides over the commission vetting applicants for her replacement, although she does not get a vote – is also worthy of comment. Even though the chair does not get a vote in the process (the role is restricted primarily to running the meetings – although the chair can, in subtle or not-so-subtle ways, influence the discussion), there would certainly appear to be a strong potential for conflict of interest in presiding over the process of replacing one’s own position. Propriety would strongly suggest (at a minimum) that the Chief Justice should have recused herself from participating.
Another interesting comment from one of the former commissioners regards the list of current finalists – noting that, although the best source of judges for the highest court should presumably be the next-lower court (the Colorado Court of Appeals), it has been 27 years since a judge has been elevated from the Court of Appeals to the Colorado Supreme Court. (One of the three finalists is an appellate judge).
Finally – for the first time in the history of the Colorado Supreme Court Nominating Commission, more information concerning the finalists has been made available to the public than just a list of names. Thanks to the increased attention on the Colorado Supreme Court this year, and the consistent efforts of the legal-affairs journal Law Week Colorado for longer than that, the public applications of the three finalists (complete except for removal of purely personal information shielded for privacy reasons – entirely appropriately) which include some relevant background on the candidates for judicial office – were made public. The public applications may be viewed in their entirety on the Law Week website (“Governor’s Office Makes Public Applications Of Justice Finalists“) or downloaded for more leisurely perusal.
Most importantly, the governor’s office is soliciting public comment on the three nominees to become the next Colorado Supreme Court justice (send E-mails to firstname.lastname@example.org with your comments, concerns, or suggestions), along with providing contact information for the three nominees:
- Monica Marquez, 1525 Sherman Street 2nd Floor, Denver CO 80203, (303) 866-5163
- David Prince, 270 S. Tejon, Colorado Springs CO 80903, (719) 448-7507
- Robert Russel, 101 W. Colfax Avenue Suite 800, Denver CO 80202, (303) 837-3725
We The People can (indeed, as citizens, we must) hold our public officials – both elected & appointed – accountable. Be a citizen, not a subject – get informed, then express your opinion on which of these three nominees the governor should be appoint to become the next justice of the Colorado Supreme Court (it will be another 2 years before you’ll be able to weigh in at the ballot box, at the conclusion of their first – probationary – term of office).
Exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice – soon to be minus 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 contributions – and exercise your right to vote “NO” on giving these unjust justices another 10-year term!
Consider what the numbers reveal.
If there were 31 applicants and the Judicial Nominating Committee interviewed them for 10 hours a day for 2 days, that translates into interviews that are only 38 minutes long –assuming: (1) the Committee takes no meal or bathroom breaks; and (2) the Committee does not discuss the merits of any applicant.
Let’s say the Nominating Committee works 12 hours a day for 2 days, no time allocated for bathroom, meals or discussion. That’s a 45 minute interview per applicant.
There are 15 members of the Supreme Court Nominating Commission. If each Commission member asks a question, that means 2-3 minutes per applicant per member. Hopefully, the Commission members have read the applications, letters of recommendation and comments from the public BEFORE the interviews.
Actually, I don’t think that the Supreme Court Nominating Commission interviewed all 31 applicants – but, since the commission refuses to share even the most basic information about the number of applicants interviewed, the questions asked, the nature of the responses, or any discussion on the applicants/interviewees – we’ll never know.
The lack of transparency and accountability in the process is one of the fatal flaws of the system, and undermines the confidence of citizens in the courts…
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