• Mario Nicolais

On elections and judges

Recently I went to the Colorado Judicial Institute’s Annual Award Dinner. Because CJI is celebrating the 50th anniversary of the merit selection system in Colorado, it invited a keynote speaker from a state where judges stand for election to share her experiences. In her sweet, southern accent, former Alabama Chief Justice Sue Bell Cobb captivated her audience for nearly an hour retelling stories from the campaign trail and envying Colorado’s system.


Chief Justice Bell Cobb is a legal powerhouse who achieved notoriety as the only Democrat to win statewide elected office in ruby-red Alabama during the 2006 election. She also became the first woman to hold the highest office in Alabama’s legal system. Think of her as a kind of southern Ruth Bader Ginsburg — or, consequently, maybe as the “Notorious SBC.”


But her election didn’t come without cost. Tremendous cost. At the time of her election, the $8.3 million spent on the race by all candidates eclipsed every other judicial election ever held in America. It is still the second most expensive today.


That should send chills down your spine. Judges raising millions of dollars to run for office. Raising money from lawyers who appear before them, companies whose cases they may need to rule on, and special interests looking to promote their policies. While justice is supposed to be blind, such vast sums could make you wonder whether justice is peeking beneath the blindfold.


And that’s why Coloradans, in all their wisdom, abandoned direct election of judges half a century ago.


Instead, Colorado employs a rigorous system of merit selection requiring nominees to submit detailed applications to nominating commissions for review. After thorough study and vetting, the commissions pass along the top two or three candidates to the governor to choose from for appointment. The system means that each nominee receives a detailed and personal review of their qualifications for the job.


The nominating commissions themselves consist of cross-section of Coloradans. Each of the 23 commissions (there are 22 judicial districts and one statewide commission) consists of 10 volunteer members. Commissioners must live in the district to be represented and serve up to two four-year terms. The governor of Colorado and chief justice of the Colorado Supreme Court each appoint one attorney and two non-attorneys; the speaker of the House and president of the Senate appoint one attorney and one non-attorney each. That’s right, more non-lawyers have a say in who becomes a judge under this process.


Critically, the voters of the state are not left out in the cold. While the nominating and appointment process provides for more in-depth review than most average Coloradans can devote selecting a judge, each provisional appointee must face the electorate in a retention vote within two years. Voters then decide whether to retain the judge (“Yes”) or send them packing (“No”). Those retained serve out 4-, 6-, 8-, or 10-year terms, depending on the office, before facing another retention vote.


And that is usually where every lawyer gets questions from non-lawyer friends confounded by which judges should be retained. Because they don’t spend all day, every day in court, they end up asking attorneys like me. The dirty little secret is that I haven’t appeared before — and have no idea about — most of the judges on the ballot either. Neither do most lawyers. But Colorado has an answer for this, too.


In addition to nominating judges, the commissions also provide detailed reviews, analysis, and recommendations for judges to every voter. So, if you really want to make an informed decision this year, just visit the Office of Judicial Performance Evaluation online at: http://www.coloradojudicialperformance.gov/review.cfm


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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