The case for term limits for judges
(John Andrews in the Wall Street Journal, Aug. 10) Americans' concern with a court system out of control has simmered for decades, never coming to a boil. The perennial frustration with judges rewriting the laws and the Constitution is like Mark Twain's comment on the weather--everybody talks about it but nobody does anything about it. That may be about to change in Colorado, if voters pass judicial term limits this fall.
Coloradans have long favored the principle that rotation in office can help curb the abuse of power. The state, along with Oklahoma, led the nation in 1990 by imposing term limits on the legislative and executive branches of state government; citizen initiatives later extended the limits to most local officials and to our congressional delegation--though the latter was struck down by the U.S. Supreme Court.
Judicial term limits have not met a great deal of legislative success. Provisions instituting them for judges were part of an omnibus judicial reform that I was unable to get past a Republican state Senate in 1999 and 2004. Impeachment proceedings against a constitution-flouting judge also failed in a Republican House in 2004. And a proposal for recall of judges was killed by the Democratic Senate last year.
But this year, reformers have gathered petitions with about 108,000 signatures, and recently set up a November 2006 vote on "10 years and out" for justices of the Colorado Supreme Court and judges of the Court of Appeals. The ballot initiative will almost certainly be certified in the coming days. [Note: It was certified on August 10, going to the ballot as Amendment 40.]
The petition drive was fueled by outrage at a blatantly political June 12 ruling of the state Supreme Court--relying on a technicality, the Court threw off the ballot a popular immigration-reform proposal. Other hot buttons include the justices' leniency to murderers in last year's Harlan and Auman cases; a judge in a custody dispute who restricted where Cheryl Clark could take her daughter to church, lest the child be exposed to "homophobia"; a 2003 decision favoring the teacher unions, snaring poor kids in bad schools; and the Taylor Ranch case, trampling property rights.
The last, Lobato v. Taylor, a property-claims ruling by the Colorado Supreme Court in 2002, is less notorious than Kelo, but its disruptive effect in clouding all Colorado land titles cannot be overstated. "We risk injustice elsewhere," a dissenting opinion warned, by accepting the plaintiffs' radical theory of "communal rights" as superior to "the sanctity of private property [with] predictability and clarity of law." But the Democratic-dominated court did just that. With its requirement for notification of all potential claimants under old Spanish land grants (dating to 1863) in order to perfect a title, Lobato invites mischief across all 103,598 square miles of Colorado. Property-owners will hear a lot about this threat in coming weeks.
Up to 1965, Colorado was one of the many states that elected all their judges in partisan campaigns. We've since been on the so-called "Missouri merit" plan, where the governor appoints judges from a slate prepared by a nominating commission. Judges then face periodic retention elections, with "retain" or "do not retain" recommendations from a judicial performance commission. It sounds good, but fewer than 1% of all judges ever get dismissed by voters, leading to virtual life tenure with little accountability.
Our ballot issue, "Limit the Judges," would reduce the retention cycle to four years (after an appointee's first provisional term, which can be as short as two years), and cap total service at three terms, about 10 years or a bit longer depending on date of appointment. It applies only to Supreme Court justices, whose current retention cycle is 10 years, and Appeals Court judges, now on an eight-year cycle. District judges' terms are not affected.
This modest proposal has infuriated the bench and bar--aided and abetted, of course, by the media--who characterize it as radical, reckless, an assault on judicial independence and a dangerous politicizing of the courts.
It is none of those. We don't go back to elected judges, or change the merit selection process. We don't make it easier to remove a miscreant--or even merely unpopular--judge. We may not even shorten the average length of appellate court tenure, which is only about eight years now.
All we seek to do is to balance the requirement for rotation in office, so it applies to all three branches of state government from now on. Why should the potential abuse of power or self-serving entrenchment by state senators, representatives, the governor and other elected executives be checked by a term limit, while the activism of the judiciary is not subjected to the same?
The judicial term limit plan has an additional provision, if the reform is approved this year, that would eject at the end of 2008 any incumbents on the two high courts who have already served 10 years or more. Limit the Judges, then, functions not only as a constitutional amendment but also a referendum on the performance of our robed policy makers.
Five of the seven state Supreme Court justices, all mostly liberal, would be gone in two years if the measure passes; likewise seven of 15 Appeals Court judges. The Colorado Bar Association bemoans a cumulative loss of 185 years' experience on the bench, but that argument may prove no more persuasive to voters in relation to the judicial branch than when it was previously deployed in vain for the legislative branch.
In my experience, term limits have helped make Colorado's legislature more respectful of the plain language of the constitution and more responsive to the sovereign will of the people. I believe term limits can yield similar benefits in our court system.
Robert Nagel, a law professor at the University of Colorado, argues that the imperial judiciary is self-stoking; that is, the legal system, by its very design, inexorably tends toward excess because it is sealed off from democratic forces. He recommends devising "other political checks" on the runaway courts. Colorado's judicial term limits, it seems to me, are a good start.