In ruling Friday in Denver against Clear the Bench Colorado, the small-government committee seeking to oust three state supreme court justices, Judge Robert Spencer levied no fines but ordered the group to change its registration with the state from an issue committee to a political committee. The ruling has teeth partly because it sets a precedent. Future committees looking to influence judicial elections here will have to register as political committees, which means they can accept donations only as large as $525. The ruling may well also impact Clear the Bench more directly than it might originally appear. If the past is any guide, Clear the Bench was likely to receive a lot of money from donors in the next few weeks, which would have turbo-charged its efforts in the run-up to Election Day.
Luis Toro, director of Colorado Ethics Watch, the watchdog group that filed the complaint against Clear the Bench that resulted in the ruling, points to the non-retention campaign against Judge Jose Marquez in 2006.
That year, committees for and against Marquez didn’t form even until the last month before the election. Toro said that, although Clear the Bench has been operating for a year already, the weeks before the election will be intense. Judge Spencer’s move will no doubt be felt by the group and could limit the reach of its campaign.
The 2006 campaign against Marquez was a charged political contest that echoes in today’s Clear the Bench campaign against Justices Michael Bender, Alex Martinez and Nancy Rice.
The anti-Marquez campaign was spearheaded by former Republican state senator John Andrews, who proposed an amendment that would have imposed term limits on state court of appeals and supreme court judges. Andrews based his campaign for Amendment 40 around Marquez, whom he argued was an incompetent liberal, mainly because in Trinen v. City & County of Denver, Marquez voted to uphold a law that restricted gun rights. The law said you couldn’t carry unconcealed weapons around Denver and that you couldn’t carry concealed weapons in your car.
Marquez didn’t write the opinion and there was solid precedent from a higher court– the state supreme court– to uphold the controversial law. Marquez also received high ratings from the state Commission on Judicial Retention. Andrews’ amendment fell far short of passing. Marquez, now retired, is incidentally the father of recently nominated state supreme court justice Monica Marquez, whose nomination weeks ago brought sharp words of criticism from Clear the Bench.
Retention elections are designed to limit political calculations in the courts. In cases across the country in the last years, however, judges have been targeted often by groups on the political right for ouster based on certain of their rulings. The point is to put judges on notice that delivering unpopular rulings may end in ouster. That has a positive democratic ring except that the judiciary branch of government is supposed to be independent and protected against popular opinion.
“We don’t put people’s constitutional rights up for a vote,” said attorney Ted Olson, the conservative lawyer who recently won the case against California’s law banning gay marriage. He asked in an interview with Chis Wallace whether we should present the free speech rights of Fox News to the people to decide for or against.
The state supreme court justices who voted last year to legalize gay marriage in Iowa have been targeted by a partisan anti-retention campaign there.[Image: Matt Arnold, Clear the Bench ]