Official Magazine of the Denver Bar Association

How Should We Select Our Judges?


“In too many states judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.”

— Former U.S. Supreme Court Justice Sandra Day O’Connor


How should we select our judges? This question has been a dilemma in America since the Framers of our Constitution. Back in 1788, Alexander Hamilton espoused the view that judges must be insulated from politics to avoid mob rule over minority interests. In Federalist No. 78, Hamilton argued that the judiciary is the weakest of the three branches of government, because it depends upon the power of the executive and the purse of the legislature to support its legitimacy. This relative weakness of the judiciary, Hamilton argues, supports the permanency of judicial office by balancing the need for minority viewpoint protection against the fear of tyranny by the Supreme Court. Tyranny by the courts would be virtually impossible because judicial decisions are enforceable only with the consent and support of the other branches.

Fast forward nearly two-and-a-half centuries and states are still at odds over how to best select judges. The major paradigms for judicial selection are public elections, merit selection (commission-based appointment), pure gubernatorial appointment and legislative elections. Elections and merit selection are the most common, but considering all the variations within these paradigms, each state essentially has its own unique judicial selection system. More broadly though, at least 22 states now select judges by some form of a merit selection system, including Colorado. Colorado’s system in particular has been lauded by experts, but not all agree with its efficacy. Organizations such as the Heritage Foundation argue that a merit selection system does not actually remove politics from the judiciary, it merely removes the politics from the voters’ oversight. Opponents of the merit selection model also note that the retention elections will lead to the same difficulty that proponents cite as problematic with a pure election system—that a judge may hesitate to issue an unpopular, but correct decision with an election looming.

There are no clear solutions to the problem of avoiding a politically captive judiciary while simultaneously affording a citizen voice for oversight. Freedom is hard work. However, removing the contested elections in favor of a “yes or no” retention vote at least takes the money and partisan politics out of the election, thus giving the voters a clear-minded choice without the influence and spin of a contested campaign.

Notwithstanding some valid points by the opponents of a merit selection system, the results have shown that insulating judges from the political will of the majority will tend to protect minority viewpoints.

No one wants a judge considering the political needs of his upcoming election when deciding a contentious case.

This tension between politics and the law happens all the time. In 2010, three Iowa Supreme Court Justices were not retained following their ruling in favor of same sex marriage in Varnum v. Brien, 762 N.W.2d 861 (2009). In a recent Oklahoma case, defense lawyers for death row inmate Clayton Lockett sought to strike down a statute protecting the secrecy of the contents of the lethal injection cocktail used in state executions. The Oklahoma Supreme Court initially issued a stay of execution and remanded to the lower appellate court for further review. This decision drew both sharp criticism from Oklahoma’s Governor and talk of impeachment in its Legislature. Amid pressure, the Oklahoma Supreme Court reversed its decision and lifted the stay. Lockett was executed a week after the stay was originally issued.

Perhaps the most glaring chasm between the Constitution and the majority’s political will can be found in the example of Justice Roy Moore of the Alabama Supreme Court. Justice Moore became Chief Justice of Alabama in 2000. Shortly after, Justice Moore erected a 5,000 pound granite monument of the Judeo-Christian Ten Commandments in the state judicial building using taxpayer money. The ACLU and Southern Poverty Law Center filed suit under the Establishment Clause. Both the U.S. District Court and the Eleventh Circuit Court of Appeals found the display unconstitutional and ordered Justice Moore to remove the monument, which he defiantly refused to do. Justice Moore was later removed by a state ethics panel in 2003 for ignoring the federal courts’ orders, but in 2012 Moore was re-elected by the voters as Chief Justice of Alabama. It is unlikely that Justice Moore was merely bending to the will of the voters in this particular instance, but this case illustrates how the will of the voters can often contravene the Constitution that judges are sworn to uphold. The balance is a difficult one to strike.

Luckily, Denver is fortunate to host the headquarters of a non-partisan advocacy group spearheaded by former Colorado Supreme Court Justice Rebecca Love Kourlis as the Executive Director. The Institute for the Advancement of the American Legal System (IAALS) is a national, independent research center dedicated to promoting a fair and responsive legal system in America. One of IAALS’s four major initiatives is Quality Judges.

This initiative advocates for a merit-based judicial selection model at the state level, known as the O’Connor Plan after its namesake and advocate former U.S. Supreme Court Justice Sandra Day O’Connor. The O’Connor Plan was prompted as O’Connor bemoaned the increasing politicization of the bench in recent years. The O’Connor Plan largely mirrors Colorado’s current judicial selection method, containing four important aspects. First, judicial candidates are interviewed by an independent judicial nominating commission that recommends a short list to the governor; second, the governor appoints a judge from among these candidates; third, the plan promotes unbiased, comprehensive evaluation of the judges by attorneys, peers, litigants, and others familiar with the judge’s temperament and decisions. Finally, the voters decide whether to retain a judge at the ballot box with an “up or down” vote. The O’Connor Plan outlines broad approaches and recommendations advising how to avoid pitfalls in judicial selection, but leaves room for details to be decided according to the needs of the particular jurisdiction.

As for the effectiveness of the initiative so far, Kourlis notes that “there are signs of hope related to judicial performance evaluations and judicial nominating commissions in states that already have a merit-based approach, but there is not a surge of movement from judicial election states toward reform.” Kourlis surmises that educating the public about the proper role of judges may help. “Judges are accountable to the law and the Constitution, not to a constituency,” says Kourlis. And while the public should have some say in the form of retention elections, the public interest and the Constitution tend to be better served when the distortion of politics and money are removed from the judicial selection process, according to the premise of the Quality Judges initiative.

IAALS’s initiative promotes the O’Connor Plan, but more than that, IAALS wishes to start a conversation. Colorado judges and lawyers have grown accustomed to our first-rate system. Those who like Colorado’s model should advocate its merits to their colleagues in other jurisdictions and to their non-lawyer friends. That support would go a long way to educating the public about the need for an effective system that relies on the Constitution, not political whim.

For more information on IAALS, please visit iaals.du.edu.


Note: On October 2, 2014, the U.S. Supreme Court granted certiorari in Williams-Yulee v. The Florida Bar, on the issue of “[w]hether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.” This case will resolve a split between the U.S. Circuit Courts of Appeals for the Third and Seventh Circuits, holding that this restriction does not violate the First Amendment, and the opposing view by the Sixth, Eighth, Ninth, and Eleventh Circuits holding that such restrictions do violate the First Amendment. Oral arguments will likely be held in the spring of 2015 and the High Court’s ruling is expected near the end of the term in June 2015.


K-Lewis-headshot(2)By Keith Lewis, an attorney at Borenstein & Associates

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