Mary Mullarkey.
Mary Mullarkey.

Colorado Supreme Court nominating committee too secretive for Clear the Bench's Matt Arnold

Did you know that the Supreme Court Nominating Commission is interviewing candidates today to fill the vacancy on Colorado's top court to be left by retiring chief justice Mary Mullarkey? Even if you did, which is doubtful, you couldn't attend, since the process is closed to the public and so secretive that the names of the 31 applicants haven't been revealed. And that's frustrating to Matt Arnold, the man behind Clear The Bench Colorado, which is encouraging "no" votes on three current justices.

Arnold admits that he isn't a constitutional attorney -- but by his reading of the state's founding document, he believes the commission is "jumping the gun" on its search for a Mullarkey replacement. While she "announced her intent to resign back in June, she didn't actually resign," Arnold points out; she plans to step down November 30. In his view, that means the constitutional trigger for launching the committee should have been August 2, the deadline for filing her intent to stand for retention -- but he says the deadline for applicants was July 26.

Whatever the case, the fifteen-member commission, made up on one attorney and one non-attorney from each congressional district, plus one at-large non-attorney, began interviewing the 31 hopefuls yesterday, with an eye toward choosing three finalists from which Governor Bill Ritter will make his final choice. And all this is happening behind closed doors.

"I don't know if the location is secret, but I certainly don't know it," Arnold says. "And I know that it's not open to the public, just like the meetings to review the applications. There's no public access, no transparency whatsoever."

He's equally concerned with the makeup of the commission: "The non-attorneys were appointed by the governor's office -- and since the terms are six years, there's a mix of appointments from Bill Ritter and Bill Owens. And the attorneys are appointed by the combination of the governor, the attorney general and the chief justice -- so there's a fox-watching-the-hen-house-scenario going on here."

Possible solutions?

"The legislature could do something," he says. "The commission is authorized constitutionally, but the way they're doing it is based on an internal rule, as I understand it. There's no statute that requires them to meet in secret; it's something they've taken upon themselves as cover for their buddies on the bench. So I think the legislature could provide some direction via statute, maybe looking at an intermediate step between the commission nomination and commission selection of the three potential nominees. Something like the advice-and-consent role that the U.S. Senate plays" in federal Supreme Court nominations.

"I'd also like to see more opportunity for public comment," he goes on. "There should be more public accountability and a lot more transparency in the entire process. They've been doing it this way for the past several decades, and it's given us Mullarkey and her ilk, who think they're unaccountable and act like it."

Bottom line, Arnold says, "We have no idea who these people are, no idea about their background or relevant qualifications, no insight whatsoever into their deliberations -- and I think that's kind of disturbing. This is really a good-government-transparency issue, and I think they're flubbing it pretty badly."

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