Imperial judges need term limits

(John Andrews in the Denver Post, June 18) You thought Colorado judges were above politics, simply because we don’t elect them or label them by parties? Think again. The footsie with judges being played by Marc Holtzman’s campaign for governor is clearly political. The Supreme Court ruling to prevent a vote on services to illegal aliens is no model of blindfold justice either. We have a problem, Houston.

To start with definitions, let’s say that judging involves applying the law with consistency and restraint, while politics involves changing the law at will. As a realist, I see no way of entirely removing politics from our judicial system. So we need to build more restraint into the system, rather simply hoping judges will restrain themselves.

Judicial term limits are a way to do that. Human nature and ego being what they are, there’s a danger of public officials curdling like old milk if left around too long. The bacteria of power hasten it. Recognizing this, Coloradans have set term limits for elected legislators and executive officers. Unelected judges need them too.

I started working on this as a Senate freshman in 1999. Having now completed my allotted service (and cheerfully, since I see an advertisement for term limits in the mirror every day), I’ve proposed it as a 2006 ballot issue. As a columnist I will have little to say on it after today, but here’s a preview of the debate.

Initiative No. 90, which started petitioning last week, would shorten the virtual life tenure of state Supreme Court and Appeals Court judges to 10 years total – assuming an incumbent’s retention by voters after a provisional two-year term and the first of two regular four-year terms. Incumbents who have already served the limit would be done after the 2008 election.

“Life tenure” is a misnomer, some will object. Yet retention elections dismiss fewer than 1% of all judges who face them. Impeachment and recall of judges are constitutionally provided for, but almost never occur. Terms are long for the two appellate courts covered by No. 90, and the deference of voters to our black-robed judicial priesthood is high. What’s to prevent the curdling?

It’s in the appellate courts that the judicial imperialism of changing the law instead of applying it mostly occurs. No. 90 would therefore term-limit only them, leaving the district courts on a four-year retention cycle, open-ended. Too few top-notch attorneys apply to be district judges as it is. Would there be a shortage of good appellate applicants under “ten and out”? I somehow doubt it.

Opponents are saying this is payback for Andrews’ judicial defeats. Despite such ad hominem nonsense, voters get the last word. It’s true I believe the state Supreme Court overstepped when it supported leniency for murderers, takings from property owners, and a school monopoly unfair to the poor. But our petition campaign, Limit the Judges, can’t succeed unless lots of other Coloradans agree.

Big majorities did agree when we surveyed over 50,000 registered voters last fall. The status quo where many low-performing judges can stay on forever was disapproved by 87%. Judicial term limits as a remedy was approved by 78%. The Kelo decision against property rights was condemned by 95%, the ruling that took God out of the Pledge of Allegiance by 61%.

Although those outrages of judicial lawmaking occurred in federal courts, Colorado courts have matched them. There was the Denver judge who told a mom which church she could or couldn’t take her daughter to – a freedom-of-worship violation which the Court of Appeals let stand and the General Assembly shrugged at. And there was the chief justice who said when it comes to congressional redistricting, judges are part of the legislative branch. Wow.

Separate branches with none dominating the others, constitutions that mean what they say, and majority rule balanced with minority rights – these fundamentals of republican government must be reasserted by curbing judicial imperialism. The anti-democratic mindset of judges and lawyers, so well diagnosed by CU law professor Robert Nagel (National Review, Nov. 21, 2005) must be institutionally checked. Term limits for judges are one step.