As confirmed to me by the judicial branch almost three months ago, current Colorado Democratic governor Bill Ritter would name any replacements of judges not retained in Tuesday’s election. (See, Article VI, Section 20 of the state constitution). Now that Lawweek ran a story on it today, I finally felt comfortable blogging on it, as so many Republicans told me otherwise despite my having done a thorough email cross-examination of Judicial Branch Public Information Officer, Rob McCallum.
Here’s his reply to my intense questioning back on August 5:
All judges standing for retention are in the midst of a term that expires on Jan. 11, 2011. If a judge is not retained and sits through the end of the term (which is historically the case) the nominating commission will convene following the November election and go through the process to send nominees to the Governor who will then appoint the new judge to the bench beginning on, or after, Jan 11, 2011.
If a judge is not retained by the voters and decides to immediately resign (to my knowledge this has never happened) then the nominating commission would begin its process and would have names to the Governor within 30 days of the judges departure. The Governor would then make the appointment.
In both scenarios it would be Governor Ritter’s appointment. [Ed: Ritter's term similarly expires on January 11, 2011]
So much for the debate on the importance of the next governor for the current judiciary, right?. Or is it? Sure Ritter is going to appoint some legal losers. He was a terrible DA and loves other terrible DAs for trial court judgeships (but so did Republican Bill Owens), and of course he will try to appoint Dems or legal establishment insiders who might as well be Dems to the Colorado Supreme Court. But voting the bums out now means the replacements only get a provisional two-year term, and are up for retention again then.
As Clear the Bench Colorado Director Matt Arnold frequently pointed out when it looked like Hickenlooper was a sure bet, the judicial branch ain’t easy to change, and it’s best to take it one step at a time. After all, it’s better to get these legal losers out now (Justices Martinez, Bender and Rice ) and have a go at the replacement in two instead of the devils-we-know in 10 years.
And while we’re at it, look carefully at your own judges. If you look at the performance reviews read between the lines, don’t just look at the recommendation or the summary – over 99 percent receive “RETAIN” recommendations. Under the guise of operating a merit system, the Commission on Judicial Performance operates more like the teachers unions – they get a 99 percent “retain” too. So if your local judges sound sketchy in the least, there’s a good chance they’re legal losers too.
We need a reform that grades on a curve. If it’s really about merit, then let’s reform the law to require the Commission give no-retain recommendations to say the bottom 10 percent. This will force the judges out of the world of communist-like equality into a world of at least modest competition . Besides, if the locals love their legal losers so much they are free to vote to retain those bottom-ranked judges.
We also need to make the entire evaluation process more open and transparent. We need a lot of reform, and I’ll go into more about the specifics after the election, but contrary to the straw man arguments brought up by the legal establishment, this reform can easily come within Colorado’s so-called Missouri System of appointment and retention. No one involved in the forefront of the reform movement is advocating straight elections.
Meanwhile, vote down the three Supreme Court justices on the ballot, and urge everyone you know in Larimer County to vote out corrupt, evidence manufacturing district court judges Jolene Blair and Terry Gilmore. Since January, I’ve been all over this pair of legal refuse that caused an innocent man, Tim Masters, to sit in prison for murder for 10 years because of exonerating evidence they withheld, for which they were disciplined, and for which the county and city paid out a total of $10 million to Masters. I’m thrilled that it looks like the voters will spit on the “RETAIN” recommendations cynically handed out by the Commission on Judicial Performance.