We have no particular beef with any Colorado judge, nor do we even know many. But it doesnt take personal knowledge to know that something is wrong with the way Colorado selects and retains judges. Former Colorado Supreme Court Justice Jean Dubofsky disagrees. For her view, see Lively Opinion in this week’s IJN.
Our view is this: The Colorado system smacks of totalitarianism, under which heads of state regularly receive some 99% of the vote, one election after another. Take this year, for example. Some 133 judges are up for retention or rejection. The Colorado Office of Judicial Performance recommends that 98.4% be retained and has no opinion on one other judge.
This office has been issuing these lopsided evaluations since 1988. Is it plausible that of the hundreds or thousands of judges over the past 22 years, virtually every single one has been competent? Is it plausible that those who select these judges have virtually never made a mistake? Is it not suspicious that the evaluations of these judges invariably, inevitably, ineluctably, unchangeably, turn out to be positive? This looks like inbreeding to us too much like those totalitarian election statistics.
Speaking of statistics, one of the ways judges are evaluated by the Colorado Office of Judicial Performance is through questionnaires filled out by lawyers and non-lawyers. There is no statistical basis on which these questionnaires are validated. There is no minimum percentage of the total number of lawyers and non-lawyers who appear before a judge required to validate the evaluations. Do these evaluations represent 3% of those who appear before a judge? 33%? 53%? No one is asking. The questionnaires are received on a random basis. Thus, when an overwhelmingly positive evaluation is issued, its basis is, in part, statistically undetermined yet, it is held up as a valid way of evaluating judges, year in and year out, one judge after another.
Clear the Bench takes matters to the opposite extreme, advocating a wholesale rejection of Colorado judges. Nonetheless, something is wrong with a system in which performance evaluators piously intone with a straight face that virtually 100% of the judicature was, is, and never will be flawed.
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