Institute for Legal Reform
Colorado citizens may 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’).
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
- 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.
Clear The Bench Colorado has, in addition to researching the relevant constitutional and statutory language, interviewed a number of past judicial nominating commissioners for insight into the process. ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are generally 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 – the Chief Justice, who presides over the commission vetting applicants for replacement of any supreme court colleagues leaving the court, although he/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 fellow justices. Particularly when the opening under consideration is to replace the Chief Justice, propriety would strongly suggest (at a minimum) that the Chief Justice should be recused from participating.
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.
“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.
Citizen participation vital in restoring Accountability and Transparency to the Colorado Supreme Court
For perhaps the first time in our state’s history, an increasing number of Colorado Citizens are taking an interest in the Colorado Supreme Court judicial retention elections – our only opportunity, as Citizens, to hold the officeholders in our 3rd branch of government (the judiciary) accountable (to the rule of law generally, to the Constitution specifically, and ultimately to We The People, in whom ultimate political authority is constitutionally vested).
Some voices – notably professional politicians such as Susan Thornton, as expressed in her Denver Post article (“Criticism of retiring Judge (sic) Mullarkey unfair“), or other legal professional advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado) believe that Citizens have no place in the process. Their message? ”Trust us, the elite political insiders, not your lying eyes. We know better.”
Others – spearheaded by Clear The Bench Colorado, but also including a large number of legal reform groups, transparency and good-government advocates – believe that Citizens not only have the right (as clearly expressed in the Colorado Constitution) but even the responsibility and duty to get informed and act (“vote “NO on unjust justices!“) accordingly. (Responding to Thornton’s attack on independent critiques of the judiciary – Accountability, Transparency apply to the Colorado Supreme Court, too – we defend the constitutional right of Colorado Citizen participation in the process).
The following article, published in the August edition of The Constitutionalist Today, expands upon that point:
Restoring Accountability and Transparency to Colorado Courts -
Why Citizen participation in judicial selection and retention is vitally necessary
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 (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). For Colorado Supreme Court justices, the opportunity to hold them accountable comes around only once every TEN years, posed as a ballot question: “Should Justice [name] be retained in office?” (Yes/NO)
In theory, the system looked like a good idea; after all, selecting judges and supreme court justices 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 and back-end review & retention processes – has actually led to an utter lack of accountability for Colorado Supreme Court justices in Colorado.
A recent Wall Street Journal article (“Voters vs. George Soros – Taking judicial selection away from the lawyers guild“) highlighted some of the concerns with the judicial selection and retention process under the “Missouri Plan” used by Colorado:
“Designed to take politics out of the courtroom, the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations. The effect has been to give a single profession control over a third of state government, with little political accountability.”
As with many things brought to us by the “good idea fairy”, the devil is in the details. Colorado’s Judicial Performance Review Commission (JPRC) “performance” reviews are heavily biased in favor of judicial incumbents (over the last several decades, issuing only 15 recommendations for non-retention resulting in only 7 judges being voted out of office) and provide little substantive information for citizens trying to decide how to vote on judges, especially supreme court justices. These JPRC review “narratives” (published at taxpayer expense in the “Blue Book” voter guides) focus almost exclusively on qualifications (essentially, have they checked all the right boxes) instead of performance (have supreme court justices, for instance, properly carried out their duties – and lived up to their oaths and obligations, or not). The most important judicial quality of all – upholding the law, as written (not fabricated or “interpreted” according to a personal or political agenda) – is given short shrift or even no consideration at all. (Additional information on the shortcomings of Colorado’s Judicial Performance Review process is available in a pair of Denver Post articles: “Demand accountability from judges, too” July 2nd CTBC guest commentary; and “Evaluating the performance of justices“, Feb. 13th [non-CTBC] guest commentary).
The recently announced impending retirement of Colorado Supreme Court Chief Justice Mary Mullarkey – who decided to quit rather than be held accountable by voters this November – has also raised interest in how Colorado appoints and evaluates judges (and particularly supreme court justices), in the first place. The process is not merely of “academic” interest. From 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.”
The common theme in critiques of the “Missouri Plan” system of “merit selection & retention” is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment. This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government. Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda. In sports, referees who violate the rules and demonstrate a consistent bias for one team lose their jobs. In government, because Colorado Supreme Court justices wield so much power, the stakes are much more important than an athletic contest.
Of course, the biggest political “players” are well aware of this – they naturally prefer the closed-door, non-transparent, unaccountable, political insider-dominated process that allows them enormous influence behind the scenes. The usual suspects include the “lawyers guilds” and similar groups. The WSJ article also singles out another powerful and well-connected cabal:
“The system has powerful defenders, however, including groups connected to the George Soros-funded Justice at Stake.”
Soros’s group would be more aptly named “Justice put to the Stake”.
Here in Colorado, a new pressure group of apologists was recently formed by politically influential and well-connected attorneys (led by Democrat super-lawyer and frequent Colorado Supreme Court litigator, Mark Grueskin) specifically to counter the growing supreme court reform and accountability movement spearheaded by Clear The Bench Colorado. (Story broken by Law Week Colorado, “Group aiming to defend Colorado judiciary comes to light“, followed up in Westword and on Clear The Bench Colorado (“More details emerge on group formed to oppose accountability for Colorado Supreme Court incumbents“).
Along with articles published in mass media outlets (for example, a recent Denver Post article calling “Criticism of retiring Judge Mullarkey unfair“), these groups are attempting to maintain the crony system of political insiders picking and preserving in power supreme court justices who rule against the rights of the people in favor of big government – putting you in your place as a subject, not protecting your rights as a citizen. They can get away with it only as long as they succeed in keeping voters in the dark.
That is why public participation – not just by a select few politically connected individuals put on commissions, but by fully informed public discussion and debate – is so critically important to maintaining good government (and accountability) in our judiciary. Become an informed citizen – review sources such as Clear The Bench Colorado and get to Know Your Courts to get “the rest of the story”.
“The original purpose of using a commission-based merit selection system was to reduce the politicization of the judiciary system. As such, it is imperative that merit selection systems not simply hide the politics behind the closed doors of a Commission but drive out destructive influence through a system that is transparent and accessible to the public.”
We The People can (indeed, as citizens, we must) hold our public officials – both elected and appointed – accountable. Be a citizen, not a subject – get informed, then 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!