Denver Bar Association
May 2006
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Just Say No To Judicial Term Limits

by Chris Little
DBA President

Chris Little

The November elections are six months away. At that time, we will have a big decision to make when we vote for a new governor. As lawyers, we have a bigger decision to make before the elections: How do we react to the proposed ballot initiative seeking term limits for appellate judges? I hope you believe, like I do, that it is a bad decision to have any judge’s term arbitrarily limited.

If the proposal makes it onto the ballot, expect a well-funded political campaign telling us that appellate judges need to be term-limited. We don’t have the money to fight the commercials that will surely come. However, we do have the ability to educate our neighbors and friends. I hope this little essay will be the start of that education process. You might think of this as a grass-roots program to educate the voters — our family and friends.

Here are some talking points to help in this grass-roots campaign:

Back to the basics. Our three branches of government were created to check and balance one another. The separation of powers is key in our constitutional form of government. Limiting the terms of judges would seriously weaken this system. In his Federalist Paper No. 78, Alexander Hamilton wrote, "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution." The framers of the Constitution understood the need for stability, regularity and impartiality in our federal courts and gave federal judges lifetime tenure, subject to impeachment; it is important to ensure our state’s appellate judges of the same.

Experience & expertise. Consider this: Do you want the least experienced lawyer in the courtroom to be the judge? Probably not. Judges become good judges by judging. For the same reason people want surgeons with years of experience to operate on them, people need judges in the courtroom who know and understand the system and case law. In addition, term limits will discourage the best and brightest lawyers from applying for judgeships. Why would a lawyer give up a stable, established law practice and clients for a job that pays much less and is only temporary?

Keep it non-political. The proposal for term limits is a serious challenge to fair and impartial courts. The intent is to take away judicial independence and to politicize the judicial process by "guaranteeing" that judges who make unpopular
decisions have shorter terms of office and don’t stay on the Bench for long. Do we want judges accountable to the Constitution, or to politicians and public opinion? Part of the role of a judge is to make decisions that uphold the Constitution, even if those decisions are politically unpopular.

What about other term limits? To those who argue that judges should be term-limited because legislators are, keep in mind that legislators’ jobs are part time. They rarely leave their full-time employment and are different than judges in that they are specifically chosen to represent the changing will of their constituents. Interestingly, the proponents of term limits for the general assembly are now questioning their own decisions. They have criticized term limits, suggesting that institutional memory is non-existent and that the power of legislative decision-making is now being made by lobbyists and not by elected officials.

Our current system:

We already have the option for voters to limit a judge’s term. After a judge is appointed, he or she is on the ballot within two years. After that, the people vote to "retain" or "not retain" every eight years for Court of Appeals judges and every 10 years for Supreme Court justices

Judges are evaluated by independent commissions (composed of non-lawyers and lawyers) that give recommendations for retention. These evaluations are printed in the Blue Book that goes to every Colorado voter

Internal controls are in place, in the form of the Judicial Disciplinary Commission that can discipline judges, remove them from the bench or encourage them to retire.

The reality of the ballot initiative. As proposed, the term limit initiative could immediately end the careers of six judges on the Colorado court of appeals and Supreme Court Chief Justice Mullarkey. Others judges and justices appointed to the appellate bench in 1995 or 1996 would have very short careers remaining.

Term limits for judges is a bad idea. The paid (probably with money from out-of-state) political commercials that likely will air may suggest that term limits will make judges more accountable. Accountable to what? Ipse dixit analysis has to be avoided. It is pure speculation to suggest that term limits equates to accountability. There is no study to support the logic. Our state judges are accountable to the voters through our merit selection system.

The judges on our appellate bench are overworked and underpaid. They chose to give up careers practicing law and answer the judicial calling. I am certain they each embrace their decision. This past year, in Docket articles, you have heard from many judges in our judicial system. They have told you about budget cuts that hurt their abilities to manage their courtrooms. Yet, none question their decisions to become judges. They apply the rule of law and make difficult decisions.

We, too, have a difficult decision. Without the money to combat partisan commercials, we need a different approach. You will be asked by your brother, neighbor, friend, or even stranger what you think of term limits. Explain the importance of judges who are appointed in our current merit selection and retention process. Give them a copy of Justice Hobbs’ merit selection article from the April Colorado Lawyer (p.13). Our system has worked well for 40 years — the only "fixing" it needs is a bigger budget.

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