Who Are You to Judge? Women and the High Courts of Colorado

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By Bri Miller

Women are filling seats on high courts in Colorado. Former Colorado Supreme Court Justice Allison Eid recently filled the seat on the Denver-based Tenth Circuit U.S. Court of Appeals left vacant by the appointment of Justice Neil Gorsuch to the U.S. Supreme Court. Colorado’s Supreme Court Nominating Commission recently recommended three women to fill the vacant seat on the Colorado Supreme Court, and Governor Hickenlooper has until December 14 to appoint one of these women.

These women are highly qualified. Marcy Glenn is a prominent appellate lawyer from a large Denver-based law firm and a longtime member of committees on ethics and professional conduct. Melissa Hart is an accomplished professor at the University of Colorado Law School where she teaches and studies employment discrimination and access to justice. Judge Patti Swift is the Chief District Court Judge in Alamosa, where she established a specialized court for families where substance abuse contributes to the removal of children from a home.

How did we end up with these three impressive women? While we wait for the Governor’s decision it is a good time to learn about Colorado’s system for filling judicial vacancies.

Colorado adopted a “merit-based” system to appoint judges about 50 years ago. The system created the state nominating commission for Colorado’s Supreme Court and Court of Appeals, and similar commissions for each judicial district. The state commission is made up of 15 lawyers and nonlawyers (two from each congressional district and one at large member), with no more than 8 members from any one political party. The commission evaluates applicants based on their qualifications and recommends three nominees for each open seat. The governor then has 15 days to select one of the three nominees. Once appointed, a justice serves a two-year term before standing for retention on the ballot, where voters have the option to remove them. If retained, justices then serve 10-year terms. The system does not remove politics entirely, but the system’s nonpartisan layers put some good distance between nominating decisions and the ballot box.

Although we do not elect federal judges and justices, the federal system allows politics to influence judicial appointments. The president makes federal nominations and is not bound by any criteria. The Senate then confirms nominees, but controls how and when it confirms nominees according to its own rules. Last year the GOP-led Senate refused to act on President Obama’s nomination to the U.S. Supreme Court, which kept the seat vacant until President Trump nominated Justice Gorsuch in 2017. Colorado’s system leaves little room for these political games--if Governor Hickenlooper refuses to act by December 15, the Chief Justice of the Supreme Court will appoint one of the three nominees.

Politics play a direct role in many states that elect judges. Some of these states even hold partisan primaries and, as in any election, campaign cash distorts results. A coal company executive in West Virginia donated millions to a candidate who voted to overturn a $50 million verdict against the company after his election. Illinois faced a similar scandal involving the insurance industry. In Alabama, the voters elected a judge to the state supreme court for a second time in 2013 after a state body removed him from the court in 2003 for refusing a federal court order to remove a monument of the Ten Commandments. Suspended again in 2016 for refusing a federal court order on same-sex marriage, Judge Roy Moore is on the ballot in today’s special election for Senate in Alabama. Colorado’s system makes these shenanigans and embarrassments much less likely. Broads also know well that prejudices against women and minorities play less of an obstacle in merit-based decisions.

It’s exciting that the Governor will pick one of three fantastic women for the Supreme Court, but no system is perfect. Broads should learn about it so they can defend it or change it. And don’t overlook our system’s key safeguard. Our system counts on you to learn about your judges and vote to determine whether they should continue on the bench. Who are you to judge (the judges)? You’re an informed voter.