In 1966, the Colorado Constitution was amended to provide for the appointment
of judges by the governor. Before that, judges of the county, district
and appellate courts were elected in the same manner as any other elected official.
Advocates of electing judges have long argued that taking judges “out
of politics” stripped the electorate of a basic right to determine
who shall serve in the judicial branch of government, just as the people
decide who serves in the legislative and executive branches of government.
Unfortunately, the “good old days” of electing judges oftentimes
resulted in the election of a political party’s “good old
boys,” rather than the persons who were the best qualified. After
all, on what unique platform can a candidate for judicial office run?
Predictably, all candidates promised to enforce the constitution and statutory
law in a fair and impartial manner. Some even said they would “get
tough on crime” Still others said their decisions would never be
influenced by partisan politics.
Oftentimes the candidate was a lawyer who was a long and faithful member
of one of the two major political parties. Common sense and political
reality tell us that there was at least a perception that a lawyer’s
odds of winning or losing a case in that judge’s courtroom might
be affected in proportion to the lawyer’s degree of support for
the winning candidate.
After 1966, trial judge candidates must first have their names submitted
to the governor by a judicial nominating commission. Each judicial district’s
commission is made up of seven persons residing in the district, no more
than four of whom can be from the same political party, and a majority
of whom are not lawyers. The commission interviews each candidate and
submits two or three names to the governor, who must appoint one of those
whose name is submitted. Initial appointment is for two years. Those appointed
must stand for retention at the next general election. A judicial performance
commission evaluates each judge candidate’s performance and makes
a recommendation to retain, not to retain, or gives no opinion. These
results are publicized. The ballot question is along the lines of “shall
judge ______ be retained in office, yes or no?
Since 1966, only a handful of judges have not been retained in office.
Which system is better calculated to obtain the most qualified judges?