Judicial Independence: “The principle of judicial independence is central to a functioning democracy. Essentially, this means that the courts are shielded from politics or any other force that could compromise its ability to make fair rulings. Judicial independence includes two elements: decisional independence and institutional independence.”
As practicing lawyers, we are vitally invested in preserving an independent judiciary. We want to practice in front of, and have our client’s cases decided by, judicial officers who are free from any outside force that would unfairly compromise their independent decision-making process. When our clients seek their “day in court,” they are seeking a fair and level playing field with a decision maker who is not biased or influenced in favor or against one side or the other.
In addition to the fact of judicial independence, it is essential that our judiciary be perceived as independent. It is not enough that the judicial officers are fair, but rather our clients must view the process and the system as fair and believe that they will get a “fair shake.” In most cases, at least one side is going to be disappointed by the decision, and so while the fact of impartiality must be a given, the credibility of the process and the client’s willingness to accept the outcome turns in large measure on the appearance of propriety and impartiality. The “I don’t agree but I understand/accept” client response springs from a confidence that the process was fair, even if the result was a disappointment.
It is my belief that tainting the judicial process with partisan politics can irreparably damage the perception of judicial independence, as well as being inimical to the fact of judicial independence.
I, for one, am grateful that our Colorado Courts are in large measure immunized against the “politicalization” process, and our courts and our clients are not forced to endure the effects of judicial elections. In the November 2014 edition of The Docket, attorney Keith Lewis provided a provocative and insightful assessment of the risks and pitfalls of injecting the political process into the selection of judges. If you missed that article, I would strongly suggest that you take a moment to visit dbadocket.org and read it.
Fortunately, Coloradoans do not select judges through partisan political elections. Rather, Colorado judges are appointed for service through a merit selection process. The Colorado merit selection system ensures that judicial officers have the skills, aptitude, and inclination necessary to effectively serve on the bench. In 1966, the People of the State of Colorado passed a constitutional amendment directing that state judges shall be appointed rather than elected (Colorado Constitution, Article VI, Section 20). Colorado’s merit selection process is designed to ensure that qualified candidates are selected to serve as judicial officers, and I believe it serves that objective well. Our Colorado governor appoints judicial officers from a slate of qualified nominees. Following appointment, judicial officers are required to stand for retention. For information on Judicial Nominating Commissions, please see courts.state.co.us/Courts/Supreme_Court/Nominating.cfm.
Colorado is also fortunate to be served by the Colorado Judicial Institute (CJI), whose mission is to preserve and enhance the fairness, impartiality and excellence of Colorado’s courts, to further public understanding of the Colorado judicial system, and to ensure that the courts meet the needs of the people (coloradojudicialinstitute.org). CJI was established in 1979 by visionaries with a passion to serve the people of Colorado and to ensure the independence of the Colorado judiciary. Over the years, CJI created programs and participated in providing education to judges about the “how” of being a judge, education to the public on issues relating to how the courts work, and ensuring that the courts meet the needs of the citizens they serve.
For example, CJI was instrumental in creating the groundbreaking Our Courts program. Our Courts is a joint activity of the Colorado Judicial Institute and the Colorado Bar Association that provides nonpartisan information programs to adult audiences around the state to further public knowledge and understanding of the state and federal courts in Colorado. Since it was founded in 2007, volunteer attorneys and judges have presented various Our Courts programs to numerous communities throughout Colorado and Wyoming. Our Courts has been honored both regionally and nationally including by United States Supreme Court Justice Sandra Day O’Connor (ourcourtscolorado.org).
CJI is committed to the independence of the judiciary, and to limiting the political impact on selection and retention of judges. CJI routinely monitors political activity (such as initiatives or referenda) that may be harmful to the independence of the judiciary, and provides the electorate accurate, unbiased information on the effect of such proceedings.
CJI is active in both recognizing excellence in the judicial community and ensuring excellence through its extensive educational programs for judicial officers. Each year, CJI presents the coveted Judicial Excellence Award to a district court judge, a county court judge, and a magistrate judge who exemplify excellence in judicial deportment, the administration of justice, and meeting the needs of the people that judicial officer serves.
CJI’s recent educational programs have included compelling presentations by Hugh Caperton, the plaintiff in the Caperton v. A.T. Massey Coal Co. case, 556 U.S. 868 (2009), as well as three of the Iowa Supreme Court justices who were removed in 2010 through a vitriolic political campaign that was heavily financed by out-of-state interests opposed to the unanimous decision of the Iowa Supreme Court in overturning the state’s same-sex marriage ban. CJI is active in raising the awareness of lawyers and the general public to the risks to our judicial system from an infusion of partisan politics.
Colorado is indeed fortunate to have a merit-based selection system for our judges.
Lawyers and litigants appearing in front of judges need not worry about who has made what campaign contributions to that judge. Colorado judges are not subject to the whims of big money campaigns conducted by those who oppose the decisions that a judge makes, but rather the judge can focus on making the right decision under the law without the fear that such a decision will become a campaign issue. Of course, Colorado’s retention system gives the voters a mechanism to address “rogue” judges who should not continue to serve on the bench, without creating a partisan political atmosphere around judicial retention. For some illustrations of the horrendous attack ads that have been launched against sitting judges in jurisdictions which provide for partisan elections of judges, try a quick Google search of “judicial attack ads” or “sleazy ads targeting judges.” For one assessment of the effects of political ads on judges and their decision-making, consider skewedjustice.org.
I would urge all Colorado lawyers to investigate and support the Colorado Judicial Institute. This nonprofit organization is on the front line fighting for judicial independence in Colorado. All Colorado lawyers, and our clients, have a vested interest in preserving both the fact and perception of judicial independence in our courts.
David P. Hersh is a civil trial lawyer at Burg Simpson Eldredge Hersh & Jardine, P.C., where he co-chairs the firm’s Commercial Litigation Department. David serves on the Board of Directors for the Colorado Judicial Institute.