There are a lot of things about elections that are predictable, including the turnout and sometimes even the weather.
The one thing that can’t be predicted with ease is the Election Day mood of the voters. This is what might be called the “irritation factor.” A surly electorate can produce unexpected results.
Given these facts, it might be useful to speculate on what will happen to Amendment 40 on the Colorado ballot, a measure that would limit the tenure of appellate judges in the state to no more than 10 years.
The immediate impact of passage would be that five of seven Supreme Court justices (all Democratic appointees) would have to leave office. If that sounds like reason enough to clap hands and vote for the measure, hold on just a minute.
Should Bill Ritter, a Democrat, win the race for governor (he leads in the polls) and still be around in January 2009, he would be able to appoint all five replacements.
It’s something to think about – but it isn’t the only thing to think about.
There are a number of reasons to be distressed by the quality of Colorado’s appellate courts, and especially the Supreme Court. Recent decisions in a capital murder case, a felony murder case and a ballot initiative case involving immigration are only the latest examples of questionable, if not outrageous, jurisprudence.
And don’t forget lingering dissatisfaction over the judicial selection and retention process that has long been in place in Colorado. Rarely does a sitting judge get the boot by voters. Most judges get approved by what has become a nearly automatic approval process.
Proponents of the system have to acknowledge the public is frustrated with the system, as evidenced by the number of voters who vote “no” on all judges. However, these supporters go on to claim (without offering proof, since the files are not public) that some poor judges leave voluntarily rather than run for retention with a negative rating.
Most voters don’t pay much attention to the details of court decisions, but it would be a rare voter who doesn’t have some impression of how the courts are doing. So what will these folks do when they get to Amendment 40 on the ballot?
Here are a couple of guesses:
The fact that the measure is short and simple works in its favor. So does the fact that it refers to term limits. Whatever else can be said about term limits, they haven’t seemed to have destroyed the legislature or the county offices where they have been repeatedly applied. Ritter himself was removed from the district attorney’s job by term limits.
Finally, there hasn’t been a really good argument advanced against it.
For example, when three former governors last month joined Gov. Bill Owens in opposing the amendment, not one of them suggested that Colorado has a great Supreme Court or that the state would be crippled if five of the long-term members said bye-bye. Instead, the governors argued that the new system would somehow put partisan politics back into the court system.
Who is kidding whom? Politics never left it. Every school child knows that it very much matters if a court is dominated by Democrats or by Republicans. The issue is not whether partisan politics plays a role but rather what role it should play.
The problem facing the voters who are dissatisfied with the current court and the current system is that there are no options other than Amendment 40. It is that or nothing at all.
Whatever else may be said, former Senate President John Andrews, a Republican, and other backers of the amendment have acted on political principle. They believe it shouldn’t matter what party gets the immediate benefits of the needed change.
Sure, it would have been nice to have wording that might avoid the prospect of a wholesale shift in the Supreme Court in 2009, but the measure would then have lost its simplicity and been wide open to charges that it was written to benefit just one political party.
So it has come down to this: Those of us who will vote for the amendment have to accept the risk that even five Ritter Supreme Court appointees couldn’t make matters much worse. Blame it on the irritation factor.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
