Former Colorado Supreme Court Justice Jean Dubofsky, in her Oct. 24 Denver Post piece “Keep integrity of courts,” disappointingly banged on the political drum to draw attention away from the voters’ interest in finding out how three Colorado Supreme Court justices, who each want 10 more years on the bench, have been deciding constitutional cases. The exaggerated commentary demonized Clear the Bench Colorado (“CTBC”) for taking to task three justices whose performance has been substandard.
Contrary to the political charges, CTBC is actually concerned with the three justices’ takeover of the Colorado Constitution. The real issue that “Keep integrity” failed to mention is this: Are Colorado Supreme Court justices answerable to the voters of Colorado for failing to follow Colorado’s Constitution in cases that affect the lives of every citizen, or not?
While our merit selection and performance evaluation system is the right system for Colorado, experience has revealed a material weakness. Our lower courts are answerable for their decisions to the higher courts, but our Supreme Court has not been held accountable for its unrestrained constitutional law decisions. Increasingly, decisions are handed down that are contrary to the plain language and obvious intent of Colorado’s Constitution. The result has been a progressive judicial takeover of the Colorado Constitution.
Despite the growing problem, the “Keep integrity” piece peddles the Blue Book state voter guide as the place to go for judicial recommendations. The Blue Book recommendations in favor of the three justices are the product of the entity entrusted with evaluating supreme court performance; namely, the State Commission on Judicial Performance (“the Commission”) of which I was a member in 2005 and 2006. (To my knowledge, there has never been a recommendation against retaining a Colorado Supreme Court justice!)
When one compares the Commission’s perfunctory recommendations to CTBC’s civics project, one sees that CTBC is intent on improving our judicial system at the top. CTBC brings the most relevant job performance information to voters so they will have a basis upon which to judge the 3 justices for themselves.
Instead of being diverted by the red herring of politics, we need to be mindful of the real issue. Should voters in Colorado have anything to say about how their supreme court justices handle the Constitution? Of course they should: the Constitution belongs to the people.
