13 October 2008

I voted.

I dropped my ballot in the mail this past Saturday, on October 11, 2008. I am now incorruptible, and can not respond to any news that breaks in the twenty-four days after I voted. But, in exchange, I will free myself from a barrage of calls urging me to vote and have I ready answer to anyone who comes knocking on my door.

I also contributed to the campaign for Jefferson County Commissioner of my one time colleague Jason Bane,, one of the most politically savy young men in Colorado. I also replaced my television with another old clunker that does not transform the human race into purple.

Colorado Judicial Retention Elections

Finally, I answered some questions about judicial retention election determinations on the ballot over the weekend.

I make it my practice to avoid providing my personal opinions about individual judicial nominees. But, as an attorney, I receive many questions about how people should vote in Colorado's judicial retention elections.

My own general rule is to start with the Blue Book whose recommendations come from Colorado's Commissions on Judicial Performance, calling special attention to any judge that receives anything other than a unanimous recommendation of retention, and to any judge who receives a low "retain" recommendation from other attorneys or lay persons surveyed on the issue despite a unanimous retain recommendation (typically my cutoff is just about anything less than 80% support). I blogged this report when it was released back in August of this year. I will leave it as an exercise to the reader to take their own Blue Book and conduct this analysis.

If anyone on the list has gotten my attention as undeserving despite these indicators, I add this person to my list. For example, I sometimes add to my "no" list, judges who are relatively intelligent and perform their duties, but who have judicial philosophies which I know from personally reviewing their work product to be ideologically conservative. I sometimes remove from my "no" list someone who receives negative comment or negative ratings for a reason I believe to be unfair (e.g., an unpopular but clearly legally correct ruling).

Also, I am more lenient in years when there is a Republican in the Governor's office, and more strict in years when there is a Democrat in the Governor's office.

Regardless of who is in the Governor's office, my standards are higher than the Commission which reviews judges, as evidenced by the fact that I one judge in the entire state received a "do not retain" recommendation. I have never personally had a judge upon whom I could vote who has not received a "retain" recommendation. I have, since coming to Colorado, voted not to retain a judge on more than one occasion.

Rather than asking myself whether a judge deserves to be fired, I ask myself if a judge is likely to be replaced by someone better with the current governor making the call from a list of three people presented to him by a blue ribbon panel established for making nominations. Generally speaking, I believe this is true for any judge whose unanimity of support or failings make that judge significantly below average among those currently holding those offices.

Of course, my vote on judicial retention election decisions doesn't really matter. History has shown that the odds that a judge whom the Commission recommends that voters retain has well in excess of a 99% chance of being retained. For example, in 2006, Colorado Court of Appeals Judge Marquez, who received a "retain" recommendation by a 6-4 margin, was retained by the voters by a safe margin, despite the most vigorous (and mostly ideologically conservative motivated) effort in recent memory to have him removed from office at the polls. Meanwhile, a significant number of judges about whom the Commission has declined to recommend for retention, or whom the Commission has recommended not be retained, still survive the voter's wrath.

Typically, a hard core minority of voters cast a "no" vote on every judge, while a safe majority of voters cast a "yes" vote on every judge for whom the Commission has made a "retain" recommendation. Probably less than 10% of voters (based upon retention election results) differentiate between judicial nominees (I among them) and those rating typically track the text of the Commission recommendations.

As a matter of probability, Jefferson County Judge Judy Archuleta, who did not receive a "retain" recommendation is the only judge in Colorado with any meaningful chance of not being retained at the polls this year. The odds, collectively, of any of the other 103 judges appearing on Colorado ballots in any county not being retained in 2008 is extremely low, safely less than 50-1.

The outcome of the handful of cases where non-retention is a plausible outcome typically turn on media coverage of the wrongs described by the Commission and additional investigation unearthed by journalists covering the story.

Given the current reality, I favor a system that would place on the ballot only judges who do not receive a "retain" recommendation, in the absence of some flag such a a timely do not retain petition, or a vote of a majority of a pertinent legislative body, to place a judge on the ballot, perhaps with a higher threshold to secure a retain recommendation (for example, at least seven votes out of ten from a judicial performance commission in favor a retention, rather than a mere majority). The current regime makes the ballot unnecessarily long, and imposes significant burdens on voters and the system for conducting the election, with little democratic benefit.

In the same vein, I favor omitting from the ballot any uncontested race. The mere possibility of an almost certainly futile write in campaign does not justify the efforts that the vote processing system puts into those races.


Dave Barnes said...


As one of those who votes "No Rentention" on every judge except the one that I had personal experience with, I encourage EVERYONE to vote NO on EVERY judge.

Think of the chaos that would result if every judge were tossed out on the street.

What fun.

P.S. And, yes, I do believe in jury nullification. Why do you ask?

Anonymous said...


Fortunately, most people have a more responsible attitude. There's a lot wrong with our country and our state, but your proposal seems unlikely to address any of them.