By Gary Clexton
Lately, there has been much written and discussed about the “problem” with “activist judges.” It would almost make one think that this is a new “problem.” However, if you look through our nation’s history, there have been many instances of cries of changing our judicial system to “save” our nation from those activist judges.
Frankly, judges are only labeled with the dreaded title of activist when they issue a ruling that some group does not like. When the ruling goes in favor of the group, the judge is wise and learned. If it is against the group’s position, the judge is an activist. Go back and read what was said about the Supreme Court’s decision in Brown v. Board of Education that said separate but equal education was unconstitutional. Talk about activist judges!
The world envies our independent judiciary. We believe it is the most respected branch of our government. Every day, judges give us a reliable and honest dispute resolution process. In every case that goes to trial, there is a winner and a loser. Yet, historically we have accepted the decisions of judges, even if we disagree with them. This is because the process by which a judge renders a decision is far more important than the decision itself. For our nation to be productive, it needs to respect the rule of law and that means respect for judges. No system is perfect, but our nation would not survive if we did not respect the judicial process and the judges that make it work.
There has been much talk in Colorado about changing the way judges are selected and returning to electing judges by popular vote. Presently, if there is a judicial vacancy and you want to be a judge you are screened by a cross section of people in our community who can evaluate experience, temperament and knowledge. Members of this commission are chosen by the Governor, Attorney General and Chief Justice of the Colorado Supreme Court. The commission is made up of four laypersons and three attorneys, with no more than four members from one political party. The commission sends two or three recommendations to the Governor and after interviews and investigation, he appoints one to fill the vacancy.
The new judge then serves a provisional term of two years and then his or her name is on the next general election ballot for retention. In Colorado, County Court judges are up for retention every four years, District Court judges are up every six years, Court of Appeals judges every eight years and Supreme Court Judges every ten years. Evaluations of judges up for retention are done by the State Commission on Judicial Performance, which is composed of six non-lawyers and four lawyers. The evaluations are published by the legislature and sent to every registered voter. This Merit Selection system is thorough, thoughtful and fair process. Colorado has used this system since 1966, as do the majority of states.
Some wish to change this system to one where judges are elected. Think of the issues that would come from having our judges elected. Elections always mean raising money. Lawyers would donate money to a judge’s campaign and people would think a judge’s decision in a case could be bought by the largest campaign contribution.
If a judge takes time to campaign, it would take away from the time he/she had to work in the already overloaded judicial system. What kind of campaign promises would judges make to the voters? Anything other than some sort of vague promise to be fair would look like the judge is deciding something before a case even goes to trial? We want and need impartial judges.
There has also been talk in Colorado about term limits for judges. We believe this is another bad idea. Judges learn to be good judges by judging. They need the experience of the judicial process to develop expertise. You would not want to have a surgeon step aside after a certain length of time to let new surgeons do the operation. The present retention system is in essence a term limit. The voters have opportunities to vote to retain or not retain judges. Another control is the Judicial Disciplinary Commission that can discipline judges, remove them from the bench, or encourage them to retire when appropriate. Finally, becoming a judge is a huge career change. When lawyers become judges they lose all their clients. Who would give up their successful practice for a provisional term on the bench, knowing that the job might end and they would have to build their practice all over again?
We have a deliberate, thorough process for selecting and retaining judges. This system helps to ensure an impartial judicial process. No system is perfect, but our present system gives us an independent judiciary that we respect and a process we treasure. It has removed judges from the political process, thereby removing the potential taint of favoritism, indebtedness, any other claims of bias. Even if you disagree with any particular decision, the system works, it doesn’t need fixing.
