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.
“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