“I’ll be back.” Thousands of Coloradans, fed up with runaway courts, signaled that unspoken message after the legislature killed another judicial reform bill last week. The issue will not go away.
State Sen. Doug Lamborn is a thoughtful, quiet-spoken Republican from Colorado Springs. The Kansas-born lawyer, father of five, contractor for his own new house, hardly seems like “The Terminator” type. But he is steely in his conviction that judges who violate their oath should be subject to voter recall.
This led to Senate Concurrent Resolution 8, Lamborn’s proposal for a constitutional amendment subjecting judicial officers to the same removal process (via petition and special election) in the event of misconduct that already applies to him and other legislators, as well as to the governor and other executive officers. It died Wednesday on a party-line vote in the Senate State Affairs Committee. Democrats now trust democracy less than Republicans do, it seems.
America’s founders intended public officials to be answerable to the citizens, not vice versa. We the people, from whose consent government derives its just powers, can use the recall petition to fire a renegade officeholder in midterm. Recall is like a shotgun over the mantelpiece: It is not to be used lightly, not easy to use, but necessary sometimes – and a helpful deterrent at all times. If judges knew it was there, they would be far less tempted to legislate.
The requirement for many thousands of signatures to trigger a special election – hundreds of thousands for a statewide office – ensures the recall won’t be invoked for reckless reprisals or mere unpopularity. It’s a safeguard for rare but important situations.
Last year in Arapahoe County, we threw out Clerk Tracy Baker for moral turpitude and misappropriation of public funds. Estes Park voters this year recalled Town Trustee David Habecker for disrespecting, as they saw it, not simply the flag but “the Republic for which it stands.” Some argued that wasn’t serious enough to warrant his removal. The majority thought it was, and who is better qualified to say? Indeed, who knows but what it was the risk of recall that deterred our CU regents from paying off Ward Churchill?
Fine, you say, but the judicial branch is different. A judge’s job isn’t to obey majorities, it is to protect minorities. Judges are supposed to follow principles, not polls. True enough. But judges are not supposed to follow personal whim, either – and when one of them does so, we the people must not be left without recourse. The laws and the Constitution are ours, after all. They belong to us, not to a few appointees in robes, serving virtual life terms.
I say “virtual” because judges do have to face retention elections. Big deal. The dismissal rate is less than 1 percent, and for an appeals court judge, the retention cycle is eight long years. For a Supreme Court justice, it’s 10. Anyone who believes that’s an effective check against abuse of power probably also believes O.J. Simpson and Robert Blake are out looking for their wives’ killers.
Courts abusing power, courts acting on personal whim – those are admittedly grave accusations. It is going on every day from judicial benches across our land, however. Leave aside the decades-old pattern of federal judges arrogating lawmaking power to themselves by fabricating an abortion right, refashioning capital punishment, or defying statute in the Terri Schiavo case. Those outrages are beyond reach of the Lamborn amendment. It was abusive and arbitrary state judges whom he sought to discipline.
Lamborn tactfully declines to mention names or cases. You can readily think of several, though: the state Supreme Court justices finding a pretext for leniency to convicted killers Lisl Auman and Robert Harlan; Denver District Judge John Coughlin telling a mother what church her daughter may attend; Colorado Supreme Court Chief Justice Mary Mullarkey declaring herself part of the legislative branch in the redistricting dispute.
Every Colorado judge has sworn to support the constitutions of the United States and of the state of Colorado. If we don’t hold them to that oath, who will? The retention process is toothless, impeachment by the legislature is a dead letter (it got nowhere against Coughlin), so why not try judicial recall? It worked against California’s Rose Bird after she voided the death penalty, remember.
This issue will indeed be back.
John Andrews (andrewsjk@aol.com) is a fellow with the Claremont Institute, a conservative think tank. He was president of the Colorado Senate in 2003-’04. He hosts “Backbone Radio” on Sundays at 710-KNUS.
