Rest in peace, judicial term limits.
If a push to force appellate judges off the bench passes Nov. 7, I will sit outside the Colorado Supreme Court on Nov. 8 wearing a black robe and a dunce cap.
I bet I don’t have to play the fool. If I do, voters in this state will eventually look sillier than I will. They will endure clogged courts dispensing politics instead of justice.
When was the last time Colorado’s living governors found a proposed constitutional amendment so terrible that they joined forces to call for its defeat?
Gov. Bill Owens and former governors Roy Romer, Dick Lamm and John Vanderhoof did that Monday. In a historic display, the two Republicans and two Democrats called Amendment 40 what it is:
A very bad mistake.
Amendment 40 “would provide no demonstrable benefits and would, in fact, harm the judicial branch of the state of Colorado,” Owens said in a statement.
“I cannot remember another time when we’ve all been together like this,” Romer said in an interview. “This is one of those decisions that really means something. The whole state’s economic and social stability is at risk.”
“Don’t underestimate the power of the words ‘term limits’ (on the ballot),” Lamm warned. “It is a magic bullet.”
In this case, the magic bullet will maim – and perhaps murder – separation of legal, legislative and executive powers.
Because it affects sitting judges, passage of Amendment 40 would force five of seven state Supreme Court justices off the bench. It also would dump seven of 19 court of appeals judges.
To justify the chaos, the selection and performance of the current judiciary would need to be a complete failure.
It isn’t even close.
“We’ve all been there,” Lamm said. “There is no perfect system to choose judges. But this one has worked.”
Added Owens: “If you have a clogged drain, you don’t tear out the plumbing in the entire house.”
You sure don’t replace periodic public votes on judge retention with a system that arbitrarily forces the next Byron “Whizzer” White off the bench just as he or she hits his or her judicial stride.
Those in favor of judicial term limits claim offense at so-called “judicial activism.” They want an easier way to remove what they consider “activist judges.” They also argue that turnover is good because it promotes new points of view.
In fact, Amendment 40 will turn important judicial appointees into political hacks. Vanderhoof, a Republican governor from 1973 to 1975, said it best. In a statement read by Republican House Minority Leader Mike May, Vanderhoof wrote: “Amendment 40 is a giant step backwards. (It) puts partisan politics right back into Colorado’s courts.”
It does so by letting governors replace appellate judges so regularly that political agendas trump judicial demeanor.
Republican Attorney General John Suthers joined the governors to warn of the consequences. Citizen commissions now recommend three candidates for each judicial opening. The governor appoints one. Periodically, citizen commissions study judicial performance and recommend retaining or dismissing judges. Voters then decide. In any case, appellate judges must retire at age 72.
The system, installed 40 years ago, was meant to take politics out of the process. Reinserting politics, Suthers said, is a “bad idea.”
Ten-year appellate judgeships will breed a judiciary with no institutional memory and no future. The result will be more decisions motivated by judges’ personal politics. Amendment 40, said the governors, makes appellate judgeships unattractive enough to drive away the best and the brightest.
Joining the Supreme Court should be like “joining a monastery,” Romer said. You put aside personal biases and usually a fat paycheck to pursue a sacred public trust based on precedent and reason.
Judicial term limits do nothing to encourage that. Instead, they gut a system that works much better than what is proposed to replace it.
Romer summed up the prospect in a single word: Awful.
Jim Spencer’s column appears Monday, Wednesday and Friday. Reach him at 303-954-1771 or jspencer@denverpost.com.
