Colorado Supreme Court Chief Justice Michael Bender delivered his final ‘State of the Judiciary’ address before the Colorado legislature on Friday (11 January 2013).
[Justice Bender faces mandatory retirement as he reaches the age of 72 next year]
Justice Bender’s speech [read full text here] addressed 3 major themes:
- the importance of citizen’s trust in the rule of law in our democracy.
- the way in which the judicial branch in Colorado furthers the rule of law for our citizens.
- the importance for the courts and the legal community to understand the needs of the public they serve and to collaborate to create programs that address those needs.
Justice Bender’s opening remarks are notable for his nod to principle:
Trust in the rule of law distinguishes our society from many others around the world. When the blind Chinese lawyer and activist, Chen Guangcheng, was allowed to leave China to study in the United States, he noted that China does not lack laws, but it lacks the rule of law. The legitimacy of government depends on the fair, impartial, and reliable administration of the laws.
Courts serve the people of the state by resolving disputes, protecting individual rights, and delivering justice in criminal and civil cases. To ensure a just society Courts must tailor the fair, effective, and efficient delivery of justice to fit each individual case. This mission requires us not only to reach a fair and just outcome but also to do so in a way that is perceived as being fair to all sides. The perception of fairness is as important as the fairness of the outcome.
Of course, Chen Guangcheng’s description of China (as a nation that “does not lack laws, but it lacks the rule of law“) might be taken to apply equally to what’s becoming of the United States.
Justice Bender claims that the Colorado judiciary “reflects [Daniel] Webster’s ideal” – that
“justice is the great interest of man on earth. It is the ligament which binds civilized beings and civilized nations together.”
As evidence, he cites “[T]hree features [that] distinguish our judiciary”
- strong bipartisan support from the General Assembly
- central financing of courts and probation systems
- non-partisan merit-based selection process and “rigorous” evaluation of judicial performance by “independent” commissions.
However, Bender presents a flimsy case for an “ideal” Colorado judiciary.
“Bipartisan” support and central financing are irrelevant to whether (or not) the judiciary achieves the standard of “fairness” and upholds the rule of law.
Moreover, Colorado’s “merit-based” judicial selection process falls short of achieving the standards of transparency and accountability we should expect from our vitally important 3rd branch of government, and remains controlled by legal-establishment special interests out of public view.
Even worse, Colorado’s official system of evaluating judicial performance is anything but “rigorous” – the evaluation commissions, having no requirement for partisan balance (in contrast to the judicial selection commissions) are not infrequently dominated by one party and/or by special-interest groups, giving rise to charges of bias, and more broadly panned for failure to provide substantive evaluations of judicial performance, as noted in this commentary by a former performance review commissioner:
There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters. If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.
Chief Justice Bender wrapped up his address by listing a number of initiatives that “tap into existing community resources and sometimes private dollars to leverage public funding,” including an increase of “problem-solving courts” (from 61 to 72), a “civil action pilot program” for resolution of business disputes, along with some personnel and administrative efficiencies achieved statewide (including a court-run civil e-filing system). He closed with effusive praise for the legislature’s “bipartisan support” for the new Colorado Judicial Center – funded by taxpayers to the tune of $258M by a combination of debt (er, “non-debt”) and new “fees” to access the courts.
Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite. Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.
The contrast between rhetoric and reality is the true “State of the Judiciary” in Colorado.