Now that Samuel Alito has been confirmed to the U.S. Supreme Court, with intense media attention and high drama in the Senate, Coloradans should take a closer look at how the newest member of our own state Supreme Court will be chosen. The selection process in Denver since December has paralleled the one in Washington, but in far less public fashion. A decision could come any day.
While the stakes are greater at the federal level than they are here, the risk to our liberties is essentially the same: a handful of unelected, black-robed attorneys rewriting the law. Judges at all levels now meddle in that way, though America's founders never intended it. So the question of who replaces Rebecca Love Kourlis, our retiring Colorado justice, matters almost as much to citizens as the great debate over Alito replacing Sandra Day O'Connor.
Except in this case there has been no debate. The names of John Dailey, Russell Carparelli, and Allison Eid were presented to Gov. Bill Owens last week by a little-known judicial nominating commission, 15 citizens all appointed by him. The governor must name Kourlis's successor from that slate of three. There will be no confirmation hearings or vote in the state Senate. The new justice will face a retention vote on the 2008 statewide ballot, and every ten years after that. The dismissal rate in such votes is less than 1 percent.
Are Owens, the three Supreme Court nominees, and the nominating commissioners (a bipartisan mix of lawyers and non-lawyers) all good men and women? Undoubtedly. The question is whether this is a good system. Are "we the people," in whom all political power originates, sufficiently represented in this so-called merit selection process, which replaced the direct election of Colorado judges in 1966? That's more doubtful.
Sorry to forsake my usual, peppery political pitch for a dull civics primer. But this subject is important — because judges are. Gone is the day when the judiciary could be trusted as the "least dangerous" branch of free government, as Alexander Hamilton asserted in Federalist No. 78. Judicial review, courts interpreting the constitution, has become the too-frequent pretext for legislating from the bench. And Washington isn't the only place it happens.
Colorado courts in recent years have given us murderers let off on a technicality (the Harlan and Auman cases), property rights trampled (the Taylor Ranch case), poor kids denied school choice and the legislature denied its power to draw congressional districts. (For a critique on the latter two miscarriages of justice, see Rebecca Kourlis's powerful dissenting opinions. She will be missed.)
A district judge, upheld on appeal, told a mom where she could and couldn't take her daughter to church — for which the state House tried to impeach him (the Clark case). The record will show that as a state senator at the time, 2004, I opposed the impeachment move, and that I supported the school choice and redistricting bills the year before. This year I'm on record proposing a judicial term-limit initiative.
None of which alters the main point. Our state's procedure for hiring, supervising, and firing these powerful officials is utterly obscure to the vast majority of citizens. If we're serious about preserving constitutional government, this can't be a good thing.
The fog of judicial obscurity makes possible the 99-plus percent retention rate for judges on election day that I mentioned above. Years ago when Sen. John Evans sought to strengthen the judicial performance commission that rates judges for the voter guide, his bill failed for want of support from one key senator with a relative employed by Chief Justice Mary Mullarkey.
The Chief Justice, you see, gets to appoint some of those very judicial performance commissioners who evaluate her and the other six justices, and the Evans bill would have ended that conflict of interest. Government is so interesting when seen from the inside.
State and federal judges, though chosen differently, tend to be depressingly similar in their progressive worldview — favoring judicial imperialism over democratic decision-making. Even if the next Owens appointee is a welcome exception, as his have generally been, the problem will remain. Our courts need a brighter spotlight of citizen concern.