Judges coddled by sweetheart reviews

(Denver Post, Feb. 18) “Ninety-nine and 44/100 percent pure.” Remember the old Ivory Soap slogan? It made the sensible point that if you start with a really clean cleaning agent, everything else will clean up better as a result. Squeaky clean is certainly what Coloradans want with our judges, entrusted as they are with interpreting the laws, punishing wrongdoers, and dispensing justice. So you will be glad to learn that by one yardstick, voter approval, state judges are better than 99 percent perfect. It sounds improbable, but the statistic is easy to calculate.

In nine elections since the judicial performance review system began in 1988, over a thousand judges have faced the voters for retention or dismissal. Fewer than one percent were dismissed (seven, to be exact). Only 13 were even recommended as “do not retain” by the sweetheart-minded performance commissions. Be my Valentine, your honor?

State Sen. Ted Harvey (R-Douglas County) thinks these lopsided numbers signal near-impotence in the review process, not near-perfection in the courts. With the goal of keeping judges more on their toes and providing voters better guidance on retention, he proposed Senate Bill 142. Its quick death in committee last week says much about the sad state of self-government today.

The Harvey bill offered six reforms to invigorate the judicial performance commissions. It provided broader input and tougher criteria in evaluating each judge – including fidelity to the constitution. It granted the commissions greater independence, moved against conflicts of interest, and added a mid-term review for powerful appellate judges. The recommendation to retain a judge, or not, would have appeared on the ballot.

All this was tame, by my lights. But then I was a proponent of last year’s Amendment 40, ten years and out for members of the Colorado Supreme Court and Court of Appeals. SB-142 was far gentler. No hint of term limits, nor even of such reasonable ideas as a balance of commissioners between political parties, statewide geographic representation, or disqualifying government employees and ex-judges from commission seats.

The few mild improvements which the bill did include were too much for the Senate Judiciary Committee, however. Majority Democrats voted it down with scarcely a word of discussion, taking their cue from the scornful opposition testimony of Colorado Bar Association spokesman D. A. Bertram.

Lawyers and judges just understand each other so well, you know, and as for citizen oversight – well, three’s a crowd. Some “tweaking” might benefit the present rubber-stamp process, Bertram admitted – but this Republican bill risked “putting judges into politics,” and goodness, we can’t have that. As if judges in politics and politics in judging were not an epidemic problem already.

How the bill could possibly politicize anything, committee chairman Brandon Shaffer and vice-chair John Morse did not ask attorney Bertram. But Sen. Morse did ask me (testifying next) why the eminence and respectability of our judges wouldn’t naturally prompt them to step down “when they should,” with no need for the tougher scrutiny and potential indignity promised by SB-142.

The American way of monitoring those who hold power, I replied, is summed up in Reagan’s motto: “Trust but verify.” Colorado’s judicial performance reviews were established to do that, 20 years after we quit electing our judges. Now, after 20 years, that ridiculous 99 percent pass rate cries out for verifying better.

The rarity of dismissals indicates a broken system, Republican Sen. Shawn Mitchell argued to his committee colleagues. But the bill died anyway on a party-line vote. So our courts will continue with a dysfunctional status quo in which, among other absurdities, the Chief Justice’s report card is written by a panel where her own appointees hold the deciding voice. Politics as usual: no wonder so many people are alienated.