Clear the Bench?
by Doug McQuiston
November’s almost upon us. It’s time to make our choices about who to vote for, which referenda or initiatives to support or oppose, and which judges to vote to retain. In some of the races, we may have to pull the lever for the least bad alternative. But take a step away from the booth for a minute, and ponder the larger role we have as lawyers in our communities. If you’re like me, you probably have friends or relatives who ask your opinion about ballot issues or which judge to vote to retain. How do you respond? Do you duck the question, saying you don’t get into court much?
May I make a suggestion?
This year, don’t duck. After all, we’re lawyers. Maybe we don’t get into court as much as we used to, but to our nonlawyer friends and neighbors, we are what communications experts call "opinion leaders," especially when it comes to judicial retention. It isn’t the purpose of this article to tell you what to say, which ballot issues should pass or fail, or which judge merits retention. Instead, I propose that we do what we always do as lawyers — work within the system we have to make it better.
Tell your friends, family, and neighbors that there is another way to make the judicial retention system work besides the "Clear the Bench Colorado" movement (www.clearthebenchcolorado.org).
Don’t get me wrong. What the folks behind Clear the Bench Colorado (CTBC) are doing is both legal and proper. Any interest group has the right to organize, raise money, and advocate for the retention or non-retention of any judge or group of judges up for retention.
But CTBC and its supporters should be careful what they wish for. First, what if they win? Who will select the replacements for the justices voted out? There is a very good chance it will be Gov. Bill Ritter. Any non-retained justices could simply retire immediately, allowing Gov. Ritter to appoint his or her successors before he leaves office. Even if the justices hold on after their non-retention, odds are their replacements will be named by Gov. John Hickenlooper (unless, between the time I write this and its publication, Divine Providence finally blesses my snakebit Republican Party). Call me crazy, but I suspect Hick’s appointees might not pass the CTBC’s TABOR purity test.
CTBC’s website makes repeated (and appropriate) reference to the notion that the best judge or justice is one who approaches his or her job as a "referee" or "umpire." They "call balls and strikes" the best they can based on what they see in the cases before them. Fair enough. But what if the next time you went to Coors Field the umpire called home plate based on how much applause or boos each prior call drew from the crowd? That, in a nutshell, is the dystopic future offered by movements that seek to toss judges who decide a certain case in a way the best-funded pressure group disagrees with.
As citizens, we should want our judges to "call it like they see it," not how we wish they’d see it. Our retention system is far from perfect, but it is far better than the alternative. One of its best attributes is that it shields the judiciary from the political pressure and electioneering we wanted to avoid by moving to retention in the first place. The Governor may get to appoint judges, but as citizens, voters get to decide to keep them. What an amazing system!
Importantly, the retention decision is not a protest vote. It is not a way to "toss" an otherwise qualified judge because he or she had to make a tough decision that may have angered one side or another. Particularly in the appellate courts, that is their job. They can’t avoid angering some element of the electorate.
The retention decision we each make in the voting booth is instead a personnel review. It requires the voters to make individual, merit-based, up or down decisions on each judge up for retention. It’s a check on the quality of the judiciary, not a chance for "throw the bums out" spleen-venting. When we cast our retention vote, we should see it as a sovereign citizen’s opportunity to carefully remove judges who do not meet high standards of quality, intellect, diligence, temperament, and impartiality.
So, where can voters turn for accurate information? Do they have to rely on demagogic sites like CTBC to work them up into a "toss ’em all out" froth? There is a better way. Here is where we, as opinion leaders, come in.
We can explain the merits of the retention system. We can point out that it makes us all "the Boss," by giving us a chance to objectively decide whether that judge merits another term on the Bench. Fortunately, we can also point our fellow voters toward the website run by the state judiciary that is full of impartial, analytical, and comprehensive information on every judge in our system. Another excellent resource is the DU Law site operated by the Institute for the Advancement of the American Legal System. It provides volumes of background information on the retention and judicial performance system, how it works, and why it is preferable to electing judges.
All of the sites listed here are invaluable and worth spending some quality time in:
So this November, we have a choice. We can pick up the pitchforks and torches and march on the courthouse, singing "Le Marseillaise" the whole time like French Revolutionaries, or we can take a deep breath, calm down a bit, and fulfill the responsibility our Founding Fathers gave us as citizens in a Republic: we can take the time to educate ourselves on each judge up for retention and make our decision as leaders, not rabble. I know what I plan to do and what I plan to ask everyone else I know to do.