Neil Gorsuch and Allison Eid set dominoes falling
[Picture: Colorado Supreme Court Justice Allison Eid listens to a question during a Senate Judiciary Committee hearing on her nomination to the U.S. Court of Appeals for the 10th Circuit, on Capitol Hill, Wednesday, Sept. 20, 2017 in Washington.]
Colorado Supreme Court Justice Allison Eid will cruise through Senate confirmation to the 10th Circuit Court of Appeals sometime in the next few weeks. She will be an excellent replacement for Neil Gorsuch, the recently appointed U.S. Supreme Court justice plucked from the 10th Circuit bench. But these are just the first two dominoes in a cascade for the Colorado legal community. The next question is who replaces Eid on the state’s highest court?
Eid is a like for like change to the 10th Circuit. Brilliant, conservative, and meticulous in her legal approach, Eid will be an asset to the court. My former constitutional law professor before Gov. Owens appointed her to the state Supreme Court in 2006, I know through personal experience that she loves the law and is dedicated to upholding our country’s justice system. My personal experience — both in class and arguing before the Colorado Supreme Court — also tells me that she will be a well prepared and probing member of the 10th Circuit. These are the hallmarks of an outstanding judge.
The 10th Circuit’s gain, though, is the Colorado Supreme Court’s loss. Furthermore, the change may have a long-lasting impact on court decisions for decades to come. The ideological and legal approach hewn by the current court will likely change noticeably in the coming few years.
Seven justices compose the Colorado Supreme Court. In addition to being the third longest serving member, Eid also happened to be one of two appointed by a Republican governor. The other, Justice Nathan Coats, will soon be faced with mandatory retirement when he reaches the age of 72. He is in his late sixties right now.
Four of the five remaining justices have all been appointed by our last two Democratic governors, Bill Ritter, Jr. and John Hickenlooper. Given the timing of Eid’s nomination, and based on Republican control of the U.S. Senate, her near certain confirmation, Hickenlooper in particular will have the opportunity to put his stamp on the court. Hickenlooper has already appointed three justices during his tenure: Brian Boatright, William Hood, and Richard Gabriel. Filling Eid’s seat will give Hickenlooper the opportunity to choose four of the seven justices, a majority of the court. That is the kind of legacy every governor dreams about.
There are several caveats. First, appointment by a Republican or Democrat does not always dictate the ideology of the justice. I have always maintained that such a simplistic approach to the judicial system is dangerously faulty. Even categorizing justices as either conservative or liberal is generally an error. It is the jurisprudential approach of a justice that is critical. For example, while judicial philosophies such as originalism and textualism are often lumped into a conservative box, they don’t always lead to conservative outcomes. Instead, they rely on the words written by a legislature and the outcome may necessarily be dictated by that legislature’s own choice of words and structure, whether liberal or conservative. It is a fine distinction, but it is an important distinction when trying to predict what a judge will do over the course of ten, twenty, or thirty years.
Second, Colorado’s system for judicial appointment does not give Hickenlooper free reign. In fact, he will be limited to three potential appointees by a judicial nominating commission. The real work vetting applicants will be done by that commission. Its members include both a lawyer and non-lawyer from each of the state’s seven congressional districts, plus one additional non-attorney at large. Furthermore, no political party can represent more than one-half the commission, plus one. The current Supreme Court Nominating Commission has five Republicans, seven Democrats, and three Unaffiliated members.
Finally, every justice must face retention votes, first after a provisional two-year term, and then once every ten years.
Just as Eid is settling into her new federal robes in a few months, the next domino will be falling in Colorado’s legal ecosystem and it may have profound effects on our state for years to come.
Mario Nicolais is an attorney and writes columns on law enforcement, the legal system, and public policy. Follow him @MarioNicolaiEsq