Andrews interview: Judicial reform push continues

Former Colorado Sen. President John Andrews, the proponent of last year’s costly and contentious “Limit The Judges” proposal to place term limits on the state’s top judges, isn’t wavering in his efforts, Law Week Colorado found during a recent interview. At the time of the interview, Andrews was coming off a more modest defeat — the failure of bills aimed at changing the makeup of the commissions that are charged with reviewing judges' performance. Andrews pleasantly greeted Editor Don Knox, and he talked slowly and at length about his positions regarding the judiciary and his experience with Colorado’s organized legal community. The interview took an hour, and it was conducted in Andrews’ third-floor office across Grant Street from the Capitol.

Question: What’s more of a focus for you, judicial term limits or judicial performance commissions, or are they equal?

Answer: The starting point of our judicial reform movement with Amendment 40 last year, and which will probably continue in 2008 with another ballot issue, is the premise that the courts are out of control, and we’re looking at different pressure points to try to remind the judicial branch that independence of undue influence should not mean the prerogative to make up the law and depart from the written text of the Constitution. I believe if we had not made Amendment 40 retroactive it would have passed, so there is, I think, a great reservoir of common-sense voter support for term limits in all three branches of government. They haven’t yet reached the judicial branch, but I think they would have reached the judicial branch in 2006 if our design of Amendment 40 had not given opponents an opportunity to raise the specter of some sort of reprisals against sitting judges or packing of the court by the next governor.

We also would freely admit in stepping back and evaluating the Amendment 40 effort that simply placing a 10-year-and-out ceiling on the service of Appeals Court judges and Supreme Court judges would not of itself assure that judges more carefully would follow the law in the future. In other words, term limits for judges is decidedly a blunt instrument, but the screaming panic that it stirred in the bench and bar establishment, this little, closed, self-protecting club, certainly signaled that even though it’s a blunt instrument and an inexact way at getting at their unaccountability, it certainly got their attention.

Moving into 2007, I was glad that Sen. Ted Harvey and Rep. Ken Summers each wanted to bring back the Evans bill of 2004, which made, I thought, a number of reasonable, modulated changes to the nominating commission process. I was not surprised that a Democrat-controlled judiciary committee in the Senate, later in the House, slapped down those bills. I was, however, disappointed that the (Colorado) bar association, after leading me to believe that they wanted to work constructively toward incremental reforms, after defeating Amendment 40, expressed no willingness to work toward incremental reforms when presented with the Harvey bill in the Senate and the Summers bill in the House this last legislative session.

In 2008, I’m still hopeful that the bar association, the Colorado Judicial Institute, the center directed by former Justice (Rebecca Love) Kourlis over at DU, and perhaps legislators on the Democrat side of the aisle will get together to try to do something about the nominating commissions. I don’t know that there’s any amount of repair to the nominating commissions that sufficiently addresses that broader concern about unaccountability of our judges and a culture of arrogance and what I’ve called a ‘God complex’ among the judges, which they believe licenses them to make up the law and disregard the written text of the Constitution. Long answer, but that’s sort of a stream of consciousness of what happened last year, this year and what may happen next year.

Q: You mentioned the Colorado Bar Association and not getting anywhere in negotiating with it on those bills. Are there meetings planned this summer, this fall, and are you in invited to those meetings?

A: No one has approached me at all. I wrote in The Denver Post of my dismay at the intellectual bankruptcy of the CBA spokesman who testified against the Harvey bill in the Senate last February. (Andrews identifies him as D.A. Bertram). Then Pete Willis (of Kutak Rock), who had been one of the bar association emissaries to me during the Amendment 40 effort, testified for CBA at the hearing where the same bill was taken up and killed in the house, and, I really expected better of Willis. But, lo and behold, at that hearing, all he said was more or less the bar association believes this is a bad bill. ‘The bar association will be working on something which we believe addresses the admitted room for improvement in the nominating process, and when we have that, we’ll be in touch with you.’ He made not a single specific criticism of the bill that was before the committee. He made not a single specific suggestion of what could or should be done, and what they claimed would be forthcoming from CBA.

After the hearing, in the corridor, I told him politely but very bluntly that it appeared to me that the bar association was acting in bad faith, that there is no genuine bona fides for improving the nominating process. And I reminded him that we had sat in this conference room last summer with Justice Kourlis, with John Moye from the bar association and with himself, and with Judge (Dennis) Graham from the Court of Appeals. I believe it was the four of them and me. And I reminded him that they had told me at that time if we dropped the amendment, or we didn’t succeed in passing the amendment, we could count on constructive cooperation toward reform in 2007, and I have yet to see any evidence of it during the legislative session, and I have yet to hear a word from anybody since then. I did I ran into Willis a month or so later. Willis says, ‘We’re working on it, you’re going to like what we’re going to do, we’re starting to get people moving.’ Generalities were given by way of encouraging me, but I’ve yet to see any of it.

Q: Does the bar want to work with you?

A: I felt that the bar association line, as reflected by John Moye in a couple of debates where I faced him last year, was their approach was to caricature the provisions of Amendment 40 to raise implausible, irresponsible scare scenarios, and to demean my own integrity and credibility, that John Andrews is out to simply have paybacks because he didn’t like the action of the state Supreme Court on specific bills, and John Andrews is just a vindictive man who found some funding and wants to make trouble, wants to wreck our courts. You can’t hurt my feelings. I don’t take that personally. But the message that I got is that 30 years of honorable involvement in the public-policy process in Colorado and holding elected office and being my party’s nominee for governor and leading the state senate all count for naught. That if you cross the bench and the bar, and you try to break up their little closed game and let some fresh air blow through the windows and some light shine, in that they will do what they have to do to not only beat your proposal but crush you as an opponent. That’s where it stands between me and the bar association.

Q: To be fair, you did mention some decisions with which you were disappointed on your website,

A: That’s true. But the line of attack, to shoot the messenger, which by the way — ad hominem — anybody who studies argumentation and persuasion, ad hominem is always a sign of someone’s sense of weakness of the merits of their argument. The ad hominem against John Andrews was because the (congressional) redistricting bill, which passed while I was Senate president was struck down by the state Supreme Court in response to Attorney General (Ken) Salazar’s suit, that John Andrews was just out for paybacks against the court in general and (Chief Justice) Mary Mullarkey in particular. This was said in disregard of the fact that I had run judicial term limits as part of an omnibus reform proposal, a proposed constitutional amendment, in April 1999, as a freshman state senator before redistricting after the 2000 census was ever heard of. So the supposed connecting of the dots to impute motives to me without any evidence falls by its own weight. It’s disproved by my 20 years of involvement with term limits, back to the late 80s, and by my having campaigned for term limits and having helped it pass into the Constitution for the executive branch when I was a nominee for governor in 1990, and (by) my own advocacy for judicial term limits as early as 1999.

The fact that I was mentioning certain cases as examples of judicial overreach isn’t the same as trying to pay anyone back. It’s simply an effort to provide specifics. I felt that as far as what specifics one provides, very often there was a Catch 22 tossed up by the opponents of our proposal. That is, if you didn’t provide specific cases you were accused of having a general grudge or ideological beef against the judicial branch for it’s own sake. If you did provide cases, they would say, ‘Well, you’ve only named me six cases.’ If you named 16, they would say, ‘Well, there are thousands of decisions that are made.’ Whether you specified or failed to specify, they always have a way of saying, ‘Well, you haven’t proved your case.’

Q: Take us back to the 1980s, and 1990s, when the term-limits movement was going on in Colorado with the executive branch and the legislative branch. Why was there no simultaneous effort with the Judicial Branch? Why did those come first?

A: Term limits originated out of the sense that the Congress under 30, 40 years of one-party control was entrenched and perpetuating its incumbency … and so you needed a constitutional stopper on the length of service in Congress. When that movement recognized how hard it would be to term limit the U.S. Congress, they turned their attention to a state-by-state effort. Colorado, Oklahoma and California were the first three states to enact it within a few months of each other in the summer and fall of 1990. At the time there was precedent to term limit the executive. We’ve done that to the president of the United States. There was a felt need to term limit the legislature, at the Congressional level, so that translated to an executive plus legislative package in the states, and here in Colorado. It was all one constitutional amendment that did it in Colorado. Conversely, the prestige and respect — the almost priestly veneration given to judges in our system, passed on from the respect accorded to the U.S. Supreme court into a sense, sometimes a proper but other times an exaggerated sense, impartiality and the lofty elevated disinterestedness of those men and women who wear the judicial robes, at any court level — at the time the term limit movement swept into Colorado, then state Sen. Terry Considine took the lead on it here in the state. In 1989, 1990, there wasn’t much thought given to including the judicial branch.

Q: When did the light go off for you? You said 1999 was when you started.

A: In ‘99, I had by then prior to coming into the Senate, I had felt a mounting sense of concern running a think tank, The Independence Institute, and later running the Texas Public Policy Foundation in San Antonio, working with Heritage Foundation in Washington, D.C., (and) producing public affairs television for John Malone alone at TCI (Tele-Communications Inc., now part of Comcast Corp.). That was what I was doing in the ‘90s. It gave me a window on the increasingly egregious overreach of courts, not just at the federal level but at the state courts as well, when I began working with reform advocates such as Doug Campbell and Doug Bruce on what we might do for Colorado courts. Doug Bruce had felt that not just he was betrayed but the will of the people was repeatedly betrayed by the unwillingness of the state Appeals Court and the state Supreme Court to read the plain language of the (tax-limiting) Taxpayers Bill of Rights (also known as TABOR) and uphold it. Unfailingly, when you litigate TABOR, it goes in favor of government and the spending lobby. That was part of Bruce’s concern. I shared that concern. I also had been a proponent of TABOR. As I began putting omnibus judicial reform together in ‘99, it had a lot of other features to it, it opened up the judicial discipline process to a little bit more public scrutiny. … It was a package of eight or 10 things we would be doing. It suddenly made a lot of sense for me.

It was brought as a resolution in the state Senate that would have required two-thirds of the Senate and two-thirds of the House. It did not clear the Senate Judiciary Committee. Even though there was a Republican majority, the chairman of the committee, Sen. Dottie Wham, was not a reforming spirit. She was more of a status quo ally. She wasn’t about to report out any sweeping judicial reform.

We did get the same identical constitutional proposal out of the Senate Judiciary Committee and in front of the full Senate in 2004. It was, however, obvious we didn’t have anything like two-thirds to pass it through the full Senate. I chose not to put it to a vote.

Q: So the key years were ‘99, ‘04 and ‘06, now we’re looking to ’08? ‘07 didn’t work either.

A: I believe that we broke the ice with Amendment 40. We achieved about 600,000 ‘yes’ votes. That’s well over half a million Coloradans who signaled their desire for a 10- year-and-out approach to our most powerful judges. I think the makings for a much-broader grassroots movement exists next year. We had to do paid signature gathering last year. I think it’s entirely possible we can do this with volunteer petitions in 2008. On the other hand, the donors to our campaign last year, I think, are concerned enough about this problem that they would support another campaign and help us find additional support for a campaign in 2008.

Q: What’s the percentage chance of your going with a ballot initiative in 2008?

A: 50-50.

Q: Is there any compromise? Is it all or nothing from your side? Has the bar ever come back and said, ‘10 years seems a little short. How about 15?’

A: No, I don’t believe that the bar association or the Colorado Judicial Institute or Rebecca Kourlis’ institute, any of those three centers of influence, would accept a term limit of any sort.

Q: They’ve told you that?

A: I just don’t think they would. I’d had quiet signals that there are judges all the way up to the Supreme Court itself that wouldn’t have minded had Amendment 40 passed. And I’ve had a federal judge bring to my attention, in a favorable way, the work of (law professors Roger) Cramton and (Paul) Carrington, who published an anthology urging an 18-year term limit for the U.S. Supreme Court. But the sincere conviction by most judges and most lawyers that … any slightest measure of additional accountability or restraint on the judiciary equals rank politicization equals gross interference with the majesty of the law and of the court, that perception seems to be so strong that it’s not going to be dislodged by negotiation or compromise of reasonable men and women coming to a meeting of the minds. You just have to break through that by the expressed will of the people, amending their constitution. We were well aware that 40 would have been litigated in the federal courts had it passed.

Q: On what basis?

A: That the term limit scheme applied unequally to different sitting judges, so they would have been denied equal protection of the law. And no matter what the people may do in 2008, it’s likely that opponents if it were to pass would find a way to litigate it in federal court.

I’m not crazy about the judge’s ruling that strikes down Amendment 41 (ethics in government act) frankly because my understanding of the American federal system inclines me to prefer that the people of the states get broad leeway to write their own constitutions. And I was not happy with the Romer v. Evans case that told the people of Colorado they could not make their own arrangements for special rights for homosexuals. I’m not happy with (Denver District Judge Christine) Habas’ decision that people can’t make their own arrangements to what sort of a gift a public employee an receive.

All that’s sort of a sideline, but the relevance of it is, I’m prepared if we pass something into the Constitution in 2008 or 2010 … they will find a way to take it into federal court and they may find a federal judge who agrees with them that the people of Colorado may not do this.

There’s another interesting line of speculation that if the Congress were ever really to take the bit in their teeth and try to strip certain jurisdiction away from the federal courts. We may now be so far gone in judicial imperialism you may have the federal courts telling the Congress it may not do that, even though the plain language of the Constitution says they may do it.

Q: A federal court challenge won’t dissuade you?

A: Not at all. Because if Amendment 40 had passed, and if they found a federal judge to rule the people of Colorado may not term limit their judges, it would only go to prove the point that the judiciary is out of control. And even had we failed ultimately to term limits our state courts, it would have been a huge step forward in the altered consciousness of what self-government really means for coloradans.

Q: You say on your website, ‘Term limits made me a better legislator.’ What do you mean by that?

A: I believe that the awareness one will not hold power for life, the awareness one will go back and serve under the laws you have made, causes one to be a better steward of power. My theme as a state senator was to remember day by day, I’m a trustee here. I don’t own this power. These budget dollars, these assets and agencies of state government are not owned by us collectively, the 100 legislators. We’re trustees, and the tendency of human nature, the intoxications of power, are such it’s very tough to remember that, it’s very seductive to begin to think that one is indispensable, you know more than others, you’re above them somehow, the building where you meet and the process where you decide and vote that this is somehow the center of what’s happening in Colorado. I love to challenge groups of visitors who come to meet in the Capitol building, the Old Supreme Court or wherever, welcome to your state Capitol, it is a very important seat of government, but it is not the center of what’s important about Colorado. …. Term limits also gave me a sense of the clock running as it would in a sports contest. Whatever I came here to achieve I needed to make every day count, I felt I was a better legislator in that way.