When should a judge be thrown out of office?
This year, Coloradans will join voters in 15 states when they engage in a special type of ballot known as a retention election. Voters must choose “yes” or “no” on whether to grant another term to Supreme Court justices and local trial judges.
Citizens can, of course, vote however they choose, for any reason, in an election. But courts play a special role in our democracy. For this reason, it’s important to consider the potential consequences of voting out judges based on a single ruling or issue.
We depend on courts that are impartial, even when they handle controversial cases or face political attacks. We don’t want courts consulting with pollsters before issuing rulings. We want them to rule based on the Constitution and the rule of law.
Courts protect everyone’s rights under the Constitution, even when at a moment in history, the rights belong to a minority with little power elsewhere.
Some Americans will point to Brown v. Board of Education – a significant step in ending racial segregation in our schools – as one historic victory of law over injustice. The United States Supreme Court also has protected the rights of gun owners, in District of Columbia v. Heller and later, McDonald v. City of Chicago, the rights of property owners, in Lucas v. South Carolina Coastal Commission, and the right of parents to choose which school to send their children to, in Zelman v. Simmons-Harris.
The greatest danger of ousting justices over a single issue is that it could force courts to ignore important constitutional rights in the face of fluctuating political pressures.
Retention elections are intended to be an option for voters to remove a jurist in the rare instance that he or she is unfit for office. For instance, removal may be warranted if a justice has defied the rule of law by taking bribes or committing other serious crimes. If a justice exhibits general incompetence or lacks the temperament or character to hear and decide cases fairly and impartially, removal may be reasonable. Finally, if a judge fails to reach timely decisions, or displays an unusually high reversal rate, removal may be appropriate.
Voters should have confidence that judges are fair and impartial, that they have appropriate character, capabilities, and credentials, and that they will uphold the law. We expect judges to be smart, hard working, and invested in their communities.
To make sure your judges and justices have these qualities, you should consult multiple sources. In Colorado, you might start with biographical information distributed by the Colorado courts to learn about your judge’s training and experience, as well as editorials in your local newspaper.
You might also look at judicial performance evaluations, which allow attorneys, court staff, and parties in lawsuits to rate judges based on criteria such as legal knowledge, integrity, judicial temperament, communication skills, administrative performance, and service to the public. You can find judicial performance evaluations on the Office of Judicial Performance and Evaluation’s website, as well as in the Blue Book. Finally, talk to your neighbors – they may have met the judge or appeared before him or her in court.
Considering a judge’s entire record, using multiple sources of information, is the best long-term insurance to protect any state’s system of justice. Beliefs and attitudes change with the decades, but the need for an impartial court system does not. If we undermine our courts, through one-issue, litmus test voting, the rights that get disregarded may someday turn out to be our own.
Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan group that works to keep courts fair, impartial and free from special-interest agendas. EDITOR’S NOTE: This is an online-only column and has not been edited.
