Speakout: Verdict on judicial term limits: They're good for all concerned

Jay Horowitz

Published October 14, 2006 at midnight

Text size

More Speakout

Proposed Amendment 40 is simple. On its face, it is seemingly innocuous and, one would think by simply reading it, uncontroversial. It says only that appellate judges in Colorado will be limited to serving 10 years - a substantial period of time, albeit not the same as "for life."

But there has been an uproar about it. Otherwise bitter adversaries have come together - former Govs. Roy Romer and Dick Lamm have held hands with Gov. Bill Owens. They have been joined by the presumably dispassionate voices of the organized bar. They all oppose this proposal.

Let's take the governors' comments one by one.

First, Owens, through Attorney General John Suthers, says: "I have concluded that it does nothing to enhance judicial accountability." By this, Owens seems to indicate that appellate judges presently are "accountable." But to whom?

So far, appellate court "retention" votes have resulted in exactly no - zero - removals from the bench. That is, in not a single case has an appellate judge in Colorado been held "accountable" to the citizenry.

Owens then says that "term limits will undermine judicial independence." This assertion flies in the face of the terms of the proposal itself: A judge appointed for 10 years, with several meaningless retention votes conducted during his tenure, is no more likely to lack "independence" than does a judge whose life tenure is marked with a larger number of meaningless retention votes.

In both cases the real guarantee of a judge's "independence" is that the judge understand what his job entails and that he honors his commitments to his oath and to do justice.

Owens offers up a couple of more unexamined and unsupported assertions:

• "Initiative 40 would seriously impair doing business in Colorado." Is he kidding? Business executives will reconsider moving to Colorado or staying in Colorado because of term limits?

• "Swapping out the appellate courts every 10 years would result in inconsistent rulings and would jeopardize the uniform application of the laws." Suthers, who was Owens' agent in delivering this alarming prediction, knows (even if Owens does not) that the principles of stare decisis and common law precedent support the "uniform application of the laws," not the length of time a judge has warmed his or her bench.

Romer matches the illogic and conclusory assertions of his successor.

Romer is reported as having warned that "limiting terms of judges to a maximum of 10 years could discourage well-qualified candidates from accepting a seat on the bench."

Any experienced and qualified lawyer knows that being a judge offers a wonderful opportunity to experience the system from a different and broadening perspective - from behind the bench, not in front of it.

No thoughtful lawyer would retreat from the prospect of being able to include on his résumé 10 years' service on a respected appellate court. Former judges are highly attractive partners for law firms. These firms understand - correctly - that their clients might be better counseled by lawyers who have not only argued hundreds of cases, but also have decided hundreds of cases.

Lamm, meanwhile, says that this amendment would "take out five of your seven sitting Supreme Court justices and seven out of your 19 appellate court justices." I will not question Lamm's math, but there is no reason to suppose that the displaced jurists - including those I applaud - are more devoted to their job than will be their successors. And there is no reason to suppose that the displaced jurists cannot benefit the profession and the justice system itself by engaging in the private practice of law or by working for reform. In fact, the careers of two of our pre-eminent former Supreme Court justices provide an admirable model.

Former Justices Jean Dubofsky and Rebecca Kourlis - both highly distinguished, both appointed for life - resigned after about 10 years' service and have continued with productive and important careers in the law.

There are, in fact, no reasons I have seen why term limits are a bad idea. But there are lots of reasons why they are a good idea:

• Judges, like all of us, grow stale and lose their freshness when on the same job perennially. Change and new perspective are to be favored, not spurned.

• There is no basis for thinking that we must guarantee a judicial candidate more than 10 years' service to either interest him in the job or, once he takes it, to obtain good work from him in the form of analytic and honest decision-making.

• Judges appointed to serve "forever" wind up removed from the fluidity of the legal system which is - and must be - dynamic, not static.

Having a system that encourages more frequent movement of good and interested lawyers between private practice and the judiciary, cross-pollinates the system. A system of this type will improve the quality of the private practice of law and will improve the quality of justice.

In the final analysis the only bad thing about term limits is what appear to be the motives of the sponsor of this amendment. It appears that former legislator John Andrews, chagrined by a ruling he did not like (which, ironically, Lamm and Owens also harshly criticized) seeks to punish the naughty justices who decided against his side of the issue.

But if this is Andrews' motive, his proposal will help him not at all.

There is no reason to suppose that the justices whose decision Andrews did not like would have decided the case any differently had they been serving a 10-year, rather than lifetime, appointment. And this fact reveals the organized bar's cry of "politicization" as the red herring that it is: Fixed 10-year terms are no more likely to serve political motives and agendas than life terms; indeed, a governor's long arm of influence over decades of judicial service will be eliminated.

Jay Horowitz has practiced law in Denver for 30 years. He is a former federal prosecutor and former clerk for a federal district court judge.

Subscribe to the Rocky Mountain News