Over the next month, 15 people will quietly make a decision that will profoundly impact the legal rights of all Coloradans. In that time, the members of the state Supreme Court Nominating Commission will review applications, conduct interviews, and eventually nominate three individuals for Gov. John Hickenlooper to select from to fill the vacant seat on the Colorado Supreme Court. Given the power and semi-permanence of the position, it is critical for the commission to choose wisely.
The commission’s current charge is necessitated by former Justice Allison Eid’s move to the 10th Circuit Court of Appeals. Already confirmed by the U.S. Senate, Eid’s absence creates a vacant seat on the seven-member Supreme Court. In most states, the seat would be filled by either a direct appointment by the governor or a special election. In contrast, Colorado uses a unique system adopted by via ballot measure 50 years ago.
Every congressional district in the state is represented by one attorney and one non-attorney. An additional member is selected to represent the state at-large. Each members serves a six-year term, longer than any elected state official, but shorter than the ten year terms appellate judges serve before they must face a retention vote.
Anyone seeking a position on the Court of Appeals or Supreme Court must submit a thorough application to the commission and appear for in-person interviews. From those applicants, the commission sends three to the governor. All of this must happen within 30 days of a vacancy. It is a substantial amount of work in short time frame. To that end, the volunteers on the commission may represent one of the most efficient bodies in state government. If only the legislature were so effective.
The system also seeks to insulate judicial selection from political pressures. In general, I believe it does a better job than most. But it is not perfect.
The composition of the nominating commission is subject to gubernatorial selection. While not nearly as political as a direct appointment, it still creates an avenue for partisan politics to insert itself. All 15 members of the commission have been appointed by Hickenlooper. While the governor is barred by the constitution from appointing more than half-plus members from the same party, the constitutional intent could be undermined by appointment of unaffiliated members to the determent of one party. For example, a commission composed of seven Republicans, three Democrats, and five unaffiliated members would comply with state law, if not the voters’ intent.
To Hickenlooper’s credit, he has not engaged in such gamesmanship. In fact, he has ensured that Colorado’s largest voting block — unaffiliated voters — have a voice, while creating a balanced commission. The panel selecting Colorado’s next Supreme Court justice will be composed of six Democrats, six Republicans, and three unaffiliated members.
I do not know all of the members, but I know a few. I believe each will take their responsibility seriously and consider every applicant carefully.
Doing so means reviewing the background and experience of candidates in addition to their judicial philosophies and legal skill. Partisan affiliation shouldn’t play any part. Instead, I hope the commission will focus on prior judicial experience and extensive appellate advocacy.
In contrast to Trump Administration’s choice to nominate an attorney who has never tried a case to the federal bench in Alabama, the Colorado nominating commission should give Hickenlooper options who have demonstrated long histories practicing in Colorado courts. Colorado deserves a justice who can hit the ground running on day one.
By Jan. 1, Colorado will have a new Supreme Court justice weighing in and deciding our most important legal issues. Those decisions will shape the direction and future of the state and its citizens for decades to come. Making the right choice today will consequently have far-reaching effects. Colorado has entrusted 15 people with that choice. Hopefully they are up to the task.
Mario Nicolais is an attorney and Denver Post columnist who writes columns on law enforcement, the legal system, and public policy. Follow him on Twitter: @MarioNicolaiEsq