Speakout: Term limits for judges unnecessary

Paul Farley

Monday, July 3, 2006

An issue that in recent weeks has generated a great deal of heat - if not light - has been that of "term limits" for state appellate judges. However, term limits are a crude and ineffective way of constraining the courts, and better solutions are available.

Colorado is already one of the leading states in the country in curbing improper influences, because our judges are nominated and evaluated by citizen commissions, rather than elected on a political ticket. The Supreme Court Nominating Commission has 15 members: one lawyer and one nonlawyer from each of the state's seven congressional districts, plus one additional nonlawyer "at large," each serving a six-year term. The nonlawyers are appointed by the governor, while the lawyers are jointly appointed by the governor, attorney general and chief justice. No more than eight members can be from the same political party.

Whenever there is a vacancy on the Colorado Supreme Court or Court of Appeals, the commission reviews applications, interviews candidates, and sends three names to the governor. The judge chosen serves an initial term of two years, and then the judge must stand for retention at the next general election. If retained by the voters, a Court of Appeals judge serves a new eight-year term, while a Supreme Court justice has a 10-year term.

At the other end of the equation is the State Commission on Judicial Performance, which evaluates judges who are up for retention. The governor, chief justice, president of the Senate, and speaker of the House appoint the four lawyers and six nonlawyers to staggered four-year terms. The commission evaluates judges on a wide range of criteria, including integrity, legal knowledge, communication skills, attentiveness, sentencing practices, and prompt case disposition. This is done by using surveys of people who have been involved in cases before the judge, reviews of numerous written opinions, caseload statistics, interviews and judges' self-evaluations, and courtroom observations. The evaluations are published by the General Assembly and sent to every registered voter.

So, like a set of bookends, the nominating and performance commissions try to strike an extremely difficult balance by making judges accountable to the public without becoming involved in politics. On this point, Colorado's citizen commission system is far superior to the partisan elections we used to have, and that some states still do. It also stands in stark contrast to the Senate confirmation process required for federal judges, which over the past two decades has become increasingly politicized, often taking on an embarrassing circuslike quality.

Critics argue that Colorado's system is ineffective because judges are rarely rejected by the voters, but this misses several important points. Some judges decide to retire after they see the survey results, or after interviewing with the performance commission, or after seeing the draft retention (or nonretention) recommendation. Or, they avoid the entire process by retiring earlier.

We also must admit that our judicial nominating system actually works pretty well, typically yielding quality candidates and a generally capable bench. And Colorado judges are already bound by a kind of term limit, in the form of a mandatory retirement age of 72. Unlike their federal counterparts, state judges can't serve well into their 70s and 80s, regardless of their health and mental acuity.

All that being said, our current system is far from perfect, and there are several things that can be done to improve it. Instead of trying to review and summarize a judge's performance over the past eight (or 10) years, the State Commission on Judicial Performance could conduct more frequent interim evaluations, and judicial terms could be shortened. We could do a much better job in studying the enormous number of written opinions (about 100 per year per judge on the Court of Appeals), and relying on that review more than surveys in assessing how a judge is doing.

The commission itself also might be more objective if the appointments currently made by the chief justice were instead made by the attorney general, who is the only lawyer chosen by citizens statewide. The commission should also be allowed to coordinate its efforts with those of the Commission on Judicial Discipline - right now, the two groups work completely independently of each other.

Our state courts can be significantly improved through some minor surgery. Since only a scalpel is needed, the citizens of Colorado should resist the temptation to use the machete offered by term limits.

Paul Farley is chair of the State Commission on Judicial Performance.