Vail Daily column: Judges and the rule of law
May 13, 2014
Every school kid knows there are three, co-equal branches of government: the executive, the legislative and judiciary. Together, they comprise a system of checks and balances that ensures that no one branch becomes too powerful. Each branch has powers that it can use to check and balance the operations and power of the other two branches. There's beauty in that which helps secure a vital and functioning democracy.
Under Article III of the U.S. Constitution, federal judges appointed to district court and appeals court judgeships are nominated by the president and confirmed by the Senate; they enjoy lifetime appointments, ended only by impeachment, resignation or death. The thinking is, if they don't have to grub for election (or re-election), then it assures their impartiality and does not make them beholden to the sway of one political wind or another.
There are examples aplenty of Supreme Court justices who were appointed by Republican presidents who, once they surmounted the bench, took a decidedly liberal bent. And vice versa. Apparently, it's a liberating experience when one is secure, particularly from political pressures.
And that is exactly how it's supposed to be; judges are meant to answer only to the law and to their consciences.
In Colorado, it's a little different than the federal system. Instead of a nearly irrevocable life-time appointment system, we have an appointment-retention system for placing judges. The way it works is that a judicial nominating commission (consisting of both lawyers and non-lawyers) from each judicial district interviews and vets applicants for district court judgeships. The commission then nominates three finalists to the governor, who conducts his own review process. After making his selection, the governor appoints a judge to fill a provisional two-year term. Thereafter, the judge stands for retention by the voters for additional six-year terms. County court judges stand for retention every four years. Judges standing for retention are thoroughly reviewed and scrutinized by a local judicial performance commission, whose members recommend retention, refrain from making a recommendation, or recommend against retention. This process avoids lifetime appointments and allows voters to remove ill-behaving or under-performing judges but does not subject our state judges to the distraction of judicial elections and attempts to ensure steadiness in the judiciary by avoiding high turnover.
Some states elect judges, which politicizes the judiciary. In judicial-election states, candidates for judgeships have to "run" against one another, raise money from lawyers and special interest groups, and serve under the common impression that their rulings reward their benefactors. Other states impose strict term limits on judges, denying their residents of experienced judges who often are at their very best toward the end of their judicial career. While term limits may be good for politicians, the same may not be equally applicable to judges.
The "rule of law" may be defined as the influence and authority of law within society, especially as a constraint upon behavior, including behavior of government officials. It protects us all from hegemony, arbitrariness, uncertainty and over-reaching.
Unequivocally, the "rule of law" hinges on a highly functioning and qualified judiciary, one not distracted by party politics and pandering for votes. Colorado's is a system that has functioned relatively seamlessly during the years and has attracted and retained generally exemplary, bright and hard-working judges. Need I add that theirs is a difficult and often thankless job and most sacrifice the incomes they could earn in private practice?
'EVERY VOTE MATTERS'
Protecting residents' right to vote and ensuring eligible voters' universal access to the ballot is among the most important tasks of our legal system. So that "every vote matters," we must all be vigilant in ensuring that the "rule of law" remains intact. In Colorado, and throughout the United States, the "rule of law" depends on an intelligent, independent judiciary that safeguards the rights of everyone and applies the law equally.
By definition, our state court judges must be highly knowledgeable in all areas of the law, be proficient in the rules of evidence and procedure, be able to discern untruthful testimony, pick apart attorneys' arguments, make litigants, jurors and lay witnesses feel at ease, and maintain decorum in a sometimes seemingly chaotic courtroom. And they must be secure that they are apart from petty politics and even the appearance that the scales of justice are anything but fairly balanced.
The law is the hub around which justice spins, and those metering the wheels deserve our special thanks.
May 1 each year is Law Day and is a reason for celebration. One needs to look no further than the daily headlines to appreciate how truly lucky each of is to live in a nation based upon the rule of law.
My thanks to local attorney John Dunn for his input on this column and to Pitkin Bar Association President Christopher Bryant for his good counsel in its theme and its creation.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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