Columnists, Jon Caldara, Legal, Politics, Uncategorized

Caldara: Judiciary needs sunlight; let’s start with how we pick judges

Colorado courts are opaque.

Most Coloradans can name our governor, United States senators, maybe a few mayors and a handful of state legislators. But unless you are appearing in front of one of them, chances are you can’t name any of Colorado’s judges.

They work in darkness. But thanks to recent reporting by The Gazette, a little light is being forced into the dark chambers.

With Democrats in the governor’s office for 40 of the last 48 years, the courts have become, well, a little incestuous.

It’s worth asking why the third branch gets so little attention in Colorado.

The press corps has permanent office space under the gold dome. They can run from one legislator’s office to another, to the governor’s office, and back to their own office and never open an umbrella on a rainy day.

There is no real home for the press in our courts — a chicken-and-egg issue.

Politicians crave media attention. Name recognition is key to re-election. You step off a plane at Denver International Airport and there’s Michael Hancock’s mug on a wall welcoming you to Denver. Legislators actually accept invitations to speak at the local Elks Club. The most dangerous place to be in Colorado is between Jared Polis and a camera.

Judges do the opposite. While they feed off the reverence offered by the legal community, they avoid media attention.

Why the difference? Politicians run for re-election. Judges run for retention.

In an election, voters choose between competitors who want the job.

In a retention, voters are merely asked if they want to force a guy out of his job. The ballot question reads, “shall judge John Doe be retained in office?” Yes or no.

In an election, you might not like any of the candidates, so you vote for the one you dislike the least.

Judges are not partisan. You’ll know that Jared Polis is a Democrat, and his challenger Heidi Ganhal is a Republican by the “D” or “R” by their name. Even if you’ve never heard of them you’d be able to infer at least some idea of their governing philosophies. In a judge’s retention you don’t even have that little morsel to inform you.

But wait. There is one place you can go to for advice on how to vote on judges: The Commission for Judicial Performance. At the end of their performance review, the commission states whether or not a judge “meets the standard” to be retained.

A couple of problems with that though. “Meets the standard” tells us nothing about their judicial philosophy. The evaluations are compiled from surveys from folks who work in and around the judge’s courtroom. A judge might run an efficient, timely and pleasant office and still give rulings you as a voter would find abhorrent.

Then there’s the issue of who is answering these surveys. It is absolutely self-serving for a judge’s staff and the lawyers who will in the future appear in front of that very judge to be the ones who evaluated him.

Politicians are evaluated by ideological groups. If the Colorado Union of Taxpayers gives a legislator a grade of “F,” you know where he stands on fiscal policy. If pro-choice NARAL gives him an “A,” you know where he is on abortion.

Since judges rarely rule on the same case, in contrast to legislators all voting on the same bill, such rankings will be tough to formulate anyway.

Given all the issues being uncovered by The Gazette of cronyism, sole-source contracts and questionable ethical behavior, we need a fundamental change in how we choose judges.

So, there are really only two solutions to bring more accountability and voter-control over our wayward judges.

We can join the other states that have partisan races for judges, meaning they’d have to go out and fundraise and cozy up with the special interests they’ll be ruling on later.

I believe a better answer is to increase the vote needed to retain a judge to a supermajority.

Most judges are retained by a 70%-ish “yes” vote now.

Is it too much to ask that a judge receive a 60% yes vote to stay in office? It would be a small step in the right direction.

Jon Caldara is president of the Independence Institute, a free market think tank in Denver.


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