Nominating judges: A political process done in complete darkness 

Integrity takes a back seat with politically imbalanced commissions and no legislative or public input

You're not familiar with Colorado's state court judges because you were never properly introduced. Colorado's governor appoints all state court judges in a process without any required public input.

​Because the governor receives nominees for judicial positions from nominating commissions, the marketing term "merit selection" is unfortunately often used to describe the system. There is no merit to a process that selects judges based on politically imbalanced commissions that work in complete darkness without mandatory public comment or legislative confirmation hearings.

The governor has a hand in selecting every member of every nominating commission in Colorado. There is no senate confirmation in Colorado. So Colorado basically has gubernatorial appointment followed by retention elections.

In the federal system, the President selects nominees for the bench who then go through a confirmation process in the U.S. Senate. The U.S. Senate holds confirmation hearings. In Colorado, not only is there no hearing regarding the appointment of any judge, there isn't even any mandatory public comment.

Whoever can best navigate Colorado's politically imbalanced nominating commissions in complete darkness gets a chance to be appointed to the bench by the governor. Are such individuals really the best candidates for the bench? Does such a process do anything to ensure judicial integrity?

The federal system, which is properly criticized, has more transparency and accountability in its judicial selection process than Colorado. Some judicial nominees actually get weeded out in the federal Senate confirmation process. In Colorado, the governor basically gets to put whoever he desires on the bench.

Colorado's process would be more credible if the governor wasn't involved in selecting every judicial nominating commission member. It would also be more credible if there was more transparency and accountability in the process such as mandatory public comment, public hearings or a legislative confirmation process. ​

​There is a judicial nominating commission in each judicial district and a Supreme Court Nominating commission which nominates Colorado appellate court judges (Supreme Court and Court of Appeals). 

District commissions consist of 3 lawyers and 4 non lawyers. If the district has less than 35,000 people, the number of lawyers on the commission can be reduced by a majority vote of the governor, chief justice and attorney general. The Supreme Court commission consists of 1 lawyer and 1 non lawyer from each congressional district (Colorado has 7 congressional districts) plus 1 additional non lawyer.

The governor selects all non lawyers. The lawyers are appointed by a majority action of the governor, chief justice and attorney general.
The commissions are expressly allowed to be politically imbalanced.

No more than one-half of the commission members plus one shall be members of the same political party. And once you add in the quorum rules for any commission, the political imbalance can get more pronounced.

Colorado's state court judges are selected in a process that is not only dark, but a process that is expressly political in nature. ​

Transparency would improve the nominating process.

Most states have much more transparent methods of selecting judges. How states select judges varies from state to state and from court to court. For instance, for trial court positions, 20 states have nonpartisan elections and 9 states have partisan elections. So the majority of states have contested elections for trial court positions.

For appellate courts, the number of states with contested elections is 21. You can see an interactive map regarding judicial selection in the states here. 
 
Colorado used to have contested, political elections for judges. In 1967, Colorado switched to gubernatorial appointment followed by retention elections for all state courts. Judicial nominating commissions were created to determine judicial nominees from which the governor could appoint a judge.
 
The problem? All of the nominating commissions’ proceedings are confidential. Only the names of the ultimate nominees are publicly released when they are submitted to the governor. No public input is sought by the nominating commission regarding the applicants. So in 1967, Colorado went from a very transparent process for selecting judges to a completely dark process for selecting judges.

Colorado did not need to remove transparency from its process for selecting judges. Indeed, the lack of transparency appears to be an unintended consequence of the change from contested elections to gubernatorial appointment followed by retention elections. The nominating commissions passed their own rules making their proceedings confidential.
 
In contested judicial elections, the money flowing to the candidates is at least made public. And everything becomes public about the candidates in contested elections. In Colorado’s dark process, Coloradans have no idea what is going on behind the scenes to select a judge. ​

Why is the process for selecting public servants kept so dark? What do they have to hide? The process in the nominating commissions should be public. The applicants for judicial vacancies should be public. The nominating commissions should seek public comment regarding the judicial applicants. Colorado should not allow judicial nominating commissions to shroud themselves in darkness.
 
Tennessee used to have a process for selecting judges for its appellate courts like Colorado’s. Tennessee gave up on judicial nominating commissions. The commissions were political. Instead the governor created a council for judicial appointments. It’s a more forthright label for what the commissions are. And in 2014 a state ballot measure passed, modifying Tennessee’s process. Tennessee added the requirement of legislative confirmation for all supreme court and intermediate appellate court judges.
 
Legislative confirmation would provide more transparency to the judicial selection process. It would also provide more accountability.
 
There are multiple ways transparency could be added to Colorado’s judicial selection process. To make judicial selection in Colorado more trustworthy, there must be transparency. At present, there is insufficient transparency regarding judicial selection in Colorado.

Cases on point: Two appointments show problems with Colorado's dark process.

An individual who wants to be a judge in Colorado submits an application to the appropriate nominating commission. You can review a blank job application to be a judge here. The names of the members of each judicial nominating commission are public, so people who want to be a judge can work to obtain good standing with the commissioners. The nominating commission members review the applications, interview some of the candidates, and select the names of 3 nominees to give to the governor from whom he or she appoints a judge to the bench. 

In 2017, a law professor applied to be a justice on Colorado's Supreme Court. Prior to being nominated, the professor blamed the Republican party for problems with the federal judicial selection process. The news video below documents the nominees and the judicial nominating process in Colorado. The law professor, Melissa Hart, was appointed by Governor Hickenlooper. She's up for retention in 2020.

The story also relates concerns regarding the nomination of Richard Gabriel, who Governor Hickenlooper also appointed.

"A juror from Grand Junction and Gabriel did the same thing -- they didn't tell the truth in court. What did the juror get? A hefty fine and jail time. What did Gabriel get? A seat on the Supreme Court."
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-- Chris Forsyth, Executive Director of The Judicial Integrity Project.

If there were public hearings regarding potential nominees, or if Colorado required legislative confirmation of judicial nominees, would either of these individuals have been nominated or ultimately appointed to Colorado's Supreme Court?

The judicial selection process should be public and include public input.

Why doesn't Colorado have a more transparent process? Why doesn't Colorado have public hearings where the public can comment on judicial nominees? If Colorado's nomination process has merit, why can't the process be public?

​As troubling as the federal judicial selection process is, nominees for federal judge positions have removed their names from consideration after being widely criticized by the public. That criticism only happens because federal judge appointees must receive Senate confirmation and the Senate holds hearings regarding the nominees. In Colorado, not only does the Senate not have to confirm a judicial candidate, there are no public hearings regarding judicial candidates.

As a matter of practice, the governor usually reaches out for comment from some groups or individuals regarding the final judicial nominees. But those comments are not public and are kept under wraps. The governor is not required to accept any comments or to publicize any comments. The public deserves to know the potential flaws of any judicial candidate.

And why are judicial nominating commissions politically imbalanced? In Colorado, there are more unaffiliated voters than there are either Republicans or Democrats. Yet the commissions are made up primarily of Democrats and Republicans with one party most often having more members on the commissions than the other. The result often puts a politically partisan nominee on the bench. 

Colorado needs a system that uses the criteria of truth and ethics first. Individuals who can successfully navigate a dark, political nominating process aren't necessarily people who hold truth and ethics in the highest regard. 

By focusing on the tenets of The Judicial Integrity Project -- removing conflicts of interest, increasing transparency and enhancing accountability -- we can improve the judicial nominating process. Judges are public servants. The public should be able to see the nominating process as it proceeds and the public should be free to comment as the process proceeds. The result will be increased public confidence in Colorado's judiciary.

Please sign our petition to support judicial reform in Colorado. And follow us on Facebook.
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Help yourself to a better justice system.