Denver, Colorado — Colorado’s unique judicial retention system, where voters periodically decide whether to keep judges on the bench without direct electoral competition, is coming under intense scrutiny. Unlike some states that hold elections to choose judges, Colorado’s governors appoint judges from a list provided by a nominating committee. Voters then cast their ballots simply to retain or dismiss these judges, sometimes several years after they have been appointed.
The overarching concern expressed by critics, including vocal local personalities like Jon Caldara, president of the Denver-based Independence Institute, is that the retention votes amount to nominal checks with nearly all judges routinely securing their positions. According to Caldara, a staggering 99.9% of judges in Colorado have historically retained their seats, often by a two-thirds majority.
Caldara, along with other critics, views this as a systemic failure to ensure true accountability within the state judiciary. The lack of competitive retention elections, he argues, means that judges do not have to sufficiently defend or justify their rulings to the public. Caldara often votes against retaining all judges, aiming to initiate more competitive and consequential judicial retention processes.
The premises for both retaining and dismissing judges stir intense debate. On the one hand, those dismayed by the state’s slightly lean left court decisions might opt to vote judges out in hope of less progressive replacements. Conversely, opponents of this view point out that dismissing a judge could lead Governor Jared Polis to appoint even more progressive candidates.
The criticisms extend beyond voting dynamics into the very functioning of the bodies overseeing judicial performance. The State Commission on Judicial Performance, primarily responsible for evaluating judges, consistently rates them as meeting or exceeding standards. However, Caldara and others challenge the commission’s neutrality and depth, critiquing its practice of assessing judges on seemingly superficial criteria rather than substantive judicial philosophy and rulings.
Controversies like the alleged $2.5 million “pay-for-silence” agreement involving Mindy Masias, former chief of staff at the State Court Administrator’s Office, exacerbate concerns about transparency and propriety in the judicial system. While intended to forestall disclosure of internal misconduct, such incidents paint a troubling picture of self-preservation at the expense of public accountability.
Even more damning, Caldara asserts, is the composition of the Colorado Commission on Judicial Discipline tasked with investigating allegations of judicial wrongdoing. With appointments dominated by the Supreme Court itself, some see a conflict of interest that undermines the commission’s ability to impartially police the judiciary.
Highlighting further the ethical quagmires entangling the judiciary, Caldara points out that key Supreme Court justices were reportedly aware of the misconduct but failed to take proper action. He uses this as a rallying cry for greater opposition in retention votes, especially against Supreme Court justices up for review.
While frustrations boil over these governance issues, the ongoing challenge remains: finding a practical pathway to reforming and improving judicial accountability and transparency in Colorado. Caldara’s vocal criticisms reflect a broader discontent with a system seemingly resistant to change, rooted in a cycle of auto-approvals and minimal disciplinary actions.
In a state priding itself on democratic values, the ongoing debate over the judicial retention system is a sharp reminder of the complexities and imperfections in balancing independence with accountability in the judiciary.
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