Denver Bar Association
May 2004
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Let the Chips Fall

by Joe Dischinger

On those messing with our judicial system

by Joe Dischinger, DBA President

The state legislature has followed through, in a big way, on its promised assault of the judiciary and the legal profession. Among other ideas, the non-lawyers in our legislature have proposed: to impeach a trial judge of unimpeachable qualifications, skill, and integrity, on the basis of a single decision (H.R. 04-1007); to remove any requirement that a person be educated in the law before becoming a judge, to allow the Governor to bypass the judicial nominating commissions and appoint whomever he or she pleases, to require Senate confirmation of judicial candidates, to impose term limits on judges and justices (S.C.R. 04-007); and to remove the judiciary from any role in appointing members to or approving the rules of judicial performance commissions (S.B. 04-151).

In Darcy v. Allen, it was said, "he that hews above his head chips will fall into his eyes." (K.B. 1603). In No. 53 of The Federalist, James Madison observed, "No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate." The belief of some in the legislature that training in the law is unnecessary for those who are called upon as judges to interpret and apply it is baffling. However, it is consistent with the notion that the more experience a judge has, the less we want that person sitting on the bench.

At least as early as the Magna Carta in 1215, it has been thought essential to the administration of justice to appoint as judges "only such as know the law of the realm and mean to observe it well." Paragraph 45 (McKechnie’s Translation). Speaking of the need to appoint the most highly qualified judges, Alexander Hamilton wrote:

[I]t will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents [that define a court’s duty in every particular case] must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

The Federalist No. 78. Addressing the need to avoid placing limits on their tenure, Hamilton stated:

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. . . . [T]here would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.

Id. Further, Hamilton recognized that a temporary duration in office would naturally discourage those most qualified to be judges, by virtue of their learning, experience and temperament, from quitting a lucrative line of practice to accept a seat on the bench. Id.

Our judiciary was designed to be different from those of monarchical England and the civil courts of Europe. The protection of individual rights from over-reaching governmental action was the central motivation for our independence and this new experiment in democracy. The authors of our Constitution, who were scholars, knew that freedom of our judges from political influence and protection against personal attack is essential to limit the political branches of government and to protect individual rights.

We have made a number of compromises in implementing these ideals in Colorado. Our judges do not have life tenure; they must stand for periodic retention elections. We have developed a merit-selection system, but have given the Executive Branch the power to affect who is appointed as a judge, both by appointing the nominating commissions and by making the final selection. We have developed the judicial performance commissions so that our voters have much more pertinent information about the judges standing for retention than is possessed by voters in states with judicial elections. For egregious cases, we have judicial discipline and impeachment. And, of course, there is always the right of appeal or the right to petition for certiorari. This is a complex system of process and rights that is based on centuries of experience. Our role as lawyers—just as clearly now as when our lawyer colleagues over the years devised these checks and balances—is to make sure that all players in the civic arena understand and appreciate how fine a system we have.


As of May 1, Joe Dischinger can be reached at:
Fairfield & Woods, P.C.
1700 Lincoln Street, Suite 2400
Denver, CO 80203-4524
303-894-4404 (direct line)

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