(Editor’s note: You can listen to this column, read by the author, here.)
It’s the complete afterthought of every election season.
No media reports on it. No advertising is done for it. And no voter even thinks about it until they trip upon it on their ballot the same way you almost step on a dead bird in your backyard.
We don’t elect judges in Colorado. That is, they don’t run as Republicans or Democrats. This is likely a good thing, though sometimes I wonder. It would at least give voters some sense as to their ideological leaning.
Judges here are appointed by the governor. And given that for 40 of the last 48 years we’ve had Democrat governors, our judiciary is out of touch, ideologically driven, extremely leftist and, as demonstrated by the recent flood of news stories, arrogant and corrupt.
What’s our check-and-balance on the judiciary? Retention votes. Every few years we get to vote on whether or not to “retain” — that is keep, a judge.
In 2020 there were five statewide judicial retention votes. All five won their retentions in landslides. The tightest race was that of Court of Appeals Judge Craig Welling with a blisteringly close 70% “yes” vote.
I’m flabbergasted there weren’t demands for a Welling recount, chants of “stop the steal” and a storming of the state capitol given that, by contrast, Probate Court Judge Elizabeth Leith won with a slightly more reasonable 83.2% vote.
If you include all the local judges, there were 103 retention votes throughout the state in 2020. And not a single judge lost. Most all won with about 75% “yes” votes. Many with near 90%.
Like Putin in Russia, a judge never loses a Colorado election (there are other comparisons).
So, what’s a voter to do? Fortunately, government came to our rescue. They created the Office of Judicial Performance Evaluation! This office has created a process to fairly evaluate each judge’s work and report the findings to voters.
They spend hours (yes, they say “hours.” Hours, I tells ya!) evaluating the “overall performance of the judges.” Basically, they evaluate if the judge runs his courtroom well, treats his staff well and doesn’t slap lawyers. All good stuff but nothing I as a voter care about. I care about a judge’s ideology. I care if his philosophy of law gravitates toward a constitutionalist Antonin Scalia or an activist Ruth Bader Ginsberg.
The commissions the office runs only tell voters if a judge “meets performance standards,” therefore sending you a signal to vote “yes” on retention, or “does not meet performance standards” and signaling a “no” vote.
This year there are eight statewide judges up for retention. And not only do they signal to vote “yes” on all eight with their “meet performance standards,” the 11-member Commission of Judicial Performance voted UNANIMOUSLY in all eight cases.
Not a single dissenting vote for any judge!
In Garrison Keillor’s fictitious Lake Wobegon all the children were above average — statistically impossible.
In Colorado’s Commissions on Judicial Performance all judges are much better than that.
They’re absolutely perfect in every way.
Hell, even Mary Poppins was only practically perfect in every way.
What are some of the hard-hitting critiques we can use to make our judgments? Take what they wrote about the Honorable Jaclyn Casey Brown: “she is well-prepared, succinct in her questions and respectful.” The commission also commends her “collegiality and collaboration among her peers.”
They may as well opine, “her kisses taste like the sweetest wine, cooks better than mother.”
For Judge Matthew Groves they write he “runs his Chambers (Really? “Chambers” is capitalized. Judges and lawyers do like to smell their own flatulence, don’t they?) in a collegial, adaptable, flexible and efficient way.”
They may as well add, “he can bench-press 200 pounds, recite Shakespearean sonnets from heart and will hold you when you just need to cry but don’t know why.”
Okay, so this sycophantic, inbred judicial performance system is self-serving and wholly meaningless. It must be scrapped entirely. That won’t happen soon.
My modest proposal is you vote “no” on all judges, all the time.
Should voting “no” ever become even close to the norm, judge themselves will lead the reform to a better system.
Jon Caldara is president of the Independence Institute, a free market think tank in Denver.
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