The Docket: How Should We Select Our Judges?

A recent article in the Denver Bar Association's The Docket reviewed the dilemma that surrounds how states select and retain judges. One of the most contentious issues is whether judges should be chosen in contested elections like other public officials, with highly politicized and costly campaigns that may undermine the hallmark of judicial impartiality. The O'Connor Judicial Selection Plan, IAALS' collaboration with Justice Sandra Day O'Connor, is named as one possible solution to mitigate the role of politics in the selection of judges. A number of states follow O'Connor Plan recommendations, while other states use a range of methods to choose judges, including public elections, elections by the legislature, and appointment by the governor.

In the article, How Should We Select Our Judges?, Colorado's merit selection system is highlighted as a nationally recognized model for ensuring a judiciary that is free from politics, while also affording citizen input. Colorado's process for choosing judges mirrors the four-part O'Connor Plan: a judicial nominating commission to recommend candidates, appointment of one of those candidates by the governor, evaluation of judges' performance on the bench, and periodic retention elections informed by these evaluations. The O'Connor Plan outlines broad recommendations for structuring each stage of this process to encourage highly qualified attorneys to apply for judgeships, ensure that the best judicial candidates are selected and retained, and build support for the judiciary from the other two branches.

Kourlis was quoted in the article stating that there are hopeful signs that more states will begin to use judicial nominating commissions and performance evaluations. But, an important step is also ongoing public education as to the proper role of judges and the need for keeping politics out of our courtrooms: “Judges are accountable to the law and the Constitution, not to a constituency.”