27 September 2010

A Modest Proposal For Judicial Retention Elections

This year, as every year, about half of the "Blue Book" that arrived in my mail last week for the upcoming Colorado general election was devoted to lengthy profiles of the myriad judges who face judicial retention elections. No where is the list longer than in Denver. About 98% of the time, this booklet is the only source of information available to a voter to evaluate a judge, voters with more knowledge often agree with the recommendations made by the Blue Book, and when the blue ribbon panel that reviews judicial performance recommends that judge be retained, the public has, to the best of my knowledge, always agreed.

I don't oppose periodic performance evaluations of judges that can result in their removal from office. A safety valve in the system makes good sense. But, in the case of lower court judges why not vest that power in bodies that already have supervisory authority over them, have access to better sources of information, and have an interest in removing bad judges because they have to deal with their mistakes.

In other words, why not undertake the same information gathering process that we use now to evaluate judges, but have retention decisions made not by voters with little information and little incentive to gather it. Instead, votes on retaining state trial judges could be made by judges of the Colorado Court of Appeals, collectively, a body that is uniquely qualified to know if a trial court judge is performing well and has an incentive to act if one isn't.

Similarly, votes on retaining Colorado Court of Appeals judges could be made by judges of the Colorado Supreme Court, who have to deal with every single decision that those appellate judges make that litigants are unhappy with, are intimately familiar with their work, and have to undo their work if they consistently perform poorly.

Trial judges and intermediate court of appeals judges should be responsive to the law as interpreted by the people who review their decisions, in published and unpublished decisions, not to the whims of the general public when they are contrary to the law.

Retention elections could continue for seven justices of the Colorado Supreme Court on the same schedule of ten year terms that exists now, since they are not responsible primarily to other higher courts with supervisory authority over them. Since virtually all of their work comes in published opinions, and there is just a single set of opinions to review for the entire state, the media and groups interested in the legal philosophy espoused in those opinions would also be better positioned to inform the general public about a judge's philosophy as applied in practice than in the case of trial judges and court of appeals judges to whom members of the public can much less easily become informed through their own efforts with public information.

Alternately, this basic proposal could be adopted, with the caveat that judges who did not receive a recommendation from a blue ribbon panel that they be retained would face the voters if retained by the judicial body charged with deciding on their retention in the ordinary course, something that could add one trial judge to the ballot of affected voters in a very small number of judicial districts every couple of years.

This would significantly shorten the Colorado general election ballot, shorten the "Blue Book" dramatically, reduce the amount of effort required of a voter who wanst to cast a full ballot in an informed manner, lead to better informed decisions on judicial retention, and give trial court judges an incentive not to flaunt appellate court authority, while still giving the People of the State of Colorado an ultimate say over the people who ultimately direct how Colorado's common law develops and how our state's laws are developed.

The current system also makes it harder to remove judges about whom there actually is any question by making a vote to retain a judge a matter of rote habit for many voters, rather than a carefully considered issue. The proposed reform would focus attention from voters on judicial retention where it provides the greatest benefit.

When we can make the job of a voter committed to making informed decisions easier, and get the same or better substantive decision making than the voters could provide because the decision maker has better information, that is a win-win for the people of Colorado.


Michael Malak said...

sounds very small-r republican

Andrew Oh-Willeke said...

Just what the constitution guarantees us, right?

Seriously, I make it no secret that I am skeptical of direct democracy.

Accountability to the popular will is necessary, but the more complicated the tools for providing it are, the less well they work. A system that is supposed to include everyone needs to be simple enough so that everyone can understand their responsibilities in that system.

Better a healthy small-r republican government, than a less functional small-d democratic government.

Giving voters the power to elect the people who run the system makes it non-authoritarian. But, the marginal benefit of giving voters furthers to micromanage the way that their elected representatives exercise their authority can actually reduce rather than enhance the degree to which the political system is really a democracy in a meaningful sense.

The populist and progressive political reforms that put everything to a vote and elected the dog catcher and everyone else failed.

Mishalak said...

I agree with you and while I might want to tinker with the specific method (I think removal should include the possibly of a veto of the dismissal by one or both of the other branches of government) I would support your method over the current system. I also think that many more positions should be appointed, such as the CU Board of Regents, Sheriffs, Coroner, Assessor, etc.