Clear The Bench Colorado Director Matt Arnold discusses Colorado’s judicial “merit selection” and nomination process (panel discussion on The Aaron Harber TV show)

Clear The Bench Colorado Director Matt Arnold was invited to discuss the pros and cons of Colorado’s “Merit Selection” system of nominating and selecting judges in a panel discussion broadcast on The Aaron Harber Show.  Other panelists were former Colorado Supreme Court Justice Gregory Hobbs, University of Colorado Law Professor Melissa Hart, and former Colorado Supreme Court Justice Rebecca Love Kourlis.

The shows discussing “Judicial Selection and the Legal System” aired on The Aaron Harber Show on Sunday, 2 April 2017.

The panel discussion contributed to addressing an important informational gap, as most Colorado citizens have very little knowledge about the process for selecting, nominating, and appointing judges to office under Colorado’s largely non-transparent selection system.  The former judges (and wannabe judge) on the panel staunchly defended the current system (“Remain Calm! All is well!“) and largely opposed reforms to increase transparency and accountability, while CTBC Director Matt Arnold advocated for retaining the system but implementing reforms to increase visibility and transparency (which, CTBC firmly believes, would both improve the quality of judicial nominations and increase public confidence).

Judicial Selection and the Legal System Part 1 from Aaron Harber on Vimeo.

Judicial Selection and the Legal System Part 2 from Aaron Harber on Vimeo.

Colorado’s “Merit Selection” Judicial Nominating Process

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention” process pioneered by the State of Missouri (thus, the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).

In theory, the system looked like a good idea; after all, selecting judges on the basis of “merit” instead of “ability to win an election” – putting professional qualifications ahead of political ones – appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

In practice, however, the “Missouri Plan” systems in place in several states seem to have merely shifted the potential for undue influence to well-connected interest groups (particularly the “in-crowd” of bar associations, other attorney groups, lobbyists, and others directly involved with the courts) operating largely outside of public scrutiny.  Lack of transparency – in both the up-front selection & nomination, as well as the back-end review & retention, processes – has actually led to a complete and utter lack of accountability for Colorado Supreme Court justices in Colorado.

Most importantly, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary in general, 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 is reminiscent of 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 do Colorado’s Judicial Nominating Commissions try to make ‘better choices’ for replacing outgoing judges?

By the Numbers: How the Judicial Selection Process works

1. 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).
2. 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.
3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
4. 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).
5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

Systemic Flaws and Opportunities for Reform

The greatest flaw in the current process is an almost complete lack of transparency (until recently, the nominating commissions refused to even publish the names and backgrounds of the three “finalists” nominated for appointment by the governor).

Judicial Nominating Commission members are usually completely unknown (and hence unaccountable) to the public; appointment to the commissions is at the sole discretion of the governor, frequently selected from among political “friends” and contributors, leading to charges of cronyism.

As noted in an Institute for Legal Reform publication reviewing “merit selection” systems and best practices across several states:

“The procedures that determine how state judges are selected and placed on the bench, particularly those in the highest courts, are central to the ultimate quality of justice in our courts. Every American has a stake in the way state judges are chosen. (emphasis added) Some states that select their judges through a commission-based appointive system have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures, and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

Greater transparency in the commission’s deliberations would also do much to restore confidence in the integrity of the process.  At a minimum, publishing the commission votes on nominees, along with a representative sample of questions put to the candidates, would allow the public to verify that judicial merit (versus political litmus tests or group identity) was decisive in nominating  judicial appointees.

Finally, some form of public review and/or legislative confirmation hearings should be considered.  Under Colorado’s current system, the governor appoints nominating commission members, who make their “recommendations” to the governor, from which the governor selects one for office – a process completely lacking in checks & balances, and from which the legislative branch is completely excluded.  Such concentration of power in the hands of a single individual is inherently corrupting – and should be balanced by including the other branch of government, with public review.

 Our View: Citizen participation is vital in restoring Accountability and Transparency to Colorado Courts

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.