Thorburn: The best of both judicial worlds
By Doug Thorburn
Sunday, August 10, 2008
'Be not faint hearted when thou sittest in judgment."
Ecclesiasticus 4:9
"Thou shall not wrest judgment; ...neither take a gift ... for a gift doth blind the eyes of the wise"
Deuteronomy 6:19
The 20th Judicial District Commission on Judicial Performance unanimously recommended that Judge James C. Klein be retained as district court judge.
Judge Klein who attained national attention for his rulings in a local adverse possession case received 87 percent approval from all non-lawyers who appeared in his court and 92 percent from all lawyers. With more controversial cases on his plate than the average new judge, he has followed the admonishment of Ecclesiasticus.
The Colorado legislature, which passed the "adverse possession" statute in the first place has listened to their electorate and changed it. That is what legislators do.
In the United States, 39 out of 50 states elect judges. Judges campaign like any legislative or executive candidate. Who runs the campaigns and raises the money for those judges? The same lawyers who appear before them. Are campaign contributions from known contributors anything but "gifts?"
In most other countries judges are picked by merit. France requires four days of rigorous testing for a judicial candidate and then a 27-month training period.
This year an African-American Supreme Court Justice in Wisconsin lost his bid for reelection against a white opponent who ran ads picturing the black incumbent next to a convicted black rapist. The ad implied that the justice, who had defended the rapist as a public defender, was responsible for the release of the criminal, who then committed another rape. Actually, the justice lost the case and the felon was later released on parole. This and other false guilt by association ads, in an election costing $5 million, caused the incumbent loss. Does the name "Willie Horton" ring a bell?
We expect but do not want this kind of dirty "swift boating" in executive or legislative campaigns. It is appalling to see it in the selection of judges.
The 20th Judicial District of Colorado (Boulder County) like the other 21 districts, has a Judicial Nominating Commission. It consists of three lawyers and four non-lawyer citizens. There cannot be more than four members of any one political party. The Chief Justice of the Colorado Supreme Court chairs the commission as a non-voting member.
The committee conducts a rigorous review of each applicant's qualifications based on merit and each applicant is subjected to an interview.
The governor then picks a judge from a list of three nominees submitted by the committee.
After two years on the bench, a new district court judge stands for a vote on whether he will be retained. If retained he will than stand for a retention vote every six years. This allows for citizen input and judicial independence.
The citizens of Boulder County should be proud that they have a new judge with three years on the bench who understood that changing the law is a job for the legislature. This is a trait valued by conservatives and liberals alike.
We should be grateful for a vetting of judges based upon merit from the outset. Hopefully they are not removed based upon a few controversial cases.
If Judge Klein is a yearling as judges go, he seems willing and eager to learn, can certainly stand the heat and we should keep him in the kitchen.
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