Judges Are Human and Guardians of the Rule of Law

I earned the privilege to practice law in Colorado in 1982 and began practicing in January 1983. Over the years, I have encountered judges in the courtroom, at continuing legal education programs, while volunteering for the Colorado Bar Association or the Denver Bar Association, and occasionally on the street, in restaurants and at a number of other settings. Most of the time I see a judge in a courtroom. Sometimes the judge rules in favor of my client, and sometimes the judge does not. Sometimes I agree with the judge’s ruling, and sometimes I do not. Sometimes I have been chewed out, but most of the time I have not. I think I could have been a good judge, but life experiences left me with predispositions that a judge should not have.

What many fail to realize is that judges have life experiences like the rest of us. Over the last forty or so years, I have read about a judge who lost his adult daughter when she fell into a natural pool of scalding water while on vacation. Another judge had an adult son horrifically murdered when the killer poured drain cleaner down his throat. Another judge had a son disbarred from the practice of law. A client once complained to me about the fact that a judge was late taking the bench for a hearing. The judge was in chambers, but the configuration of the courtroom was such that he heard the client’s comment. When the judge took the bench, he made it quite clear that he was not happy with what the client had said. While waiting for paperwork in the courtroom clerk’s office after the hearing, I heard the judge on the phone in his chambers. I asked the courtroom clerk whether the judge was all right. The clerk responded that the judge’s wife was being operated on for cancer the next day. Changed my perspective on what the judge said in the courtroom.

As with any profession, some judges are better than others. Like the rest of us, all are fallible in one way or another. As I write this, there is a disciplinary proceeding pending against a judge in northeast Colorado that could result in the end of the judge’s judicial career. In other words, judges are human. When a judge has a sick child, the judge takes the bench the next day to decide the issues presented. When a judge has a sick spouse, significant other, parent, etc., the judge takes the bench the next day. When they have a death in the family, they know they have to take the bench after only a few days at most to mourn, and they must be at their best. We, lawyers and non-lawyers, expect and demand only a judge’s best. But they are human like all of us.

Now, as through all our nation’s history, judges are the guardians of the Rule of Law. The Rule of Law has been the foundation on which our country is built since the Constitution was written and approved. The Rule of Law is not always equally applied. The displacement and genocide of Indigenous Peoples, the ⅔ clause in the Constitution, slavery, Jim Crow and redlining, the denial for years of women’s right to vote, the exclusionary laws applied to Asian immigrants, and the internment camps during World War II...the list goes on and on. But now, maybe, we see the egregious acts of our history and can realize the Rule of Law is again in danger. Who are the guardians? Judges. Municipal, county, administrative, district, and appellate state judges. Federal administrative, bankruptcy, immigration, district and appellate judges. The Judge Advocate General’s Corp in every branch of the military.

Some kvetch about unelected judges making decisions. I grew up in Cook County, Illinois. When I was a child, Cook County had a reputation as the most corrupt county in one of the most, if not the most, corrupt states in the United States. Cook County judges — and to my knowledge, most judges in Illinois — were elected during that time. Based on my recollections of that place and time, Colorado should not aspire to have elected judges. The Constitution makes the appointment of federal district court judges, circuit court of appeals judges, and Supreme Court justices lifetime appointments for a reason: independence. Colorado has an appointment and retention system with the goal of keeping judges independent. Independence is a requirement to protect the Rule of Law. Given the enormous resources of some individuals, many local and state governments, and the federal government, citizens should not consciously or unconsciously feel as though the person on the bench is beholden to donors and political cronies. No judge or Supreme Court justice is flawless. No trial court judge is always going to make the correct decision. That is why we have appellate courts. But I know that when I walk into a Colorado courtroom and make an argument to the best of my ability for a client, I can expect a fair hearing. I’ve done this for over forty years, and if I did not feel that way, I would already have retired.

I hope most, if not all, Colorado citizens will feel the same way as judges and the Rule of Law are challenged by elected and unelected government officials for political gain if a decision is not what those government officials wanted.

If Colorado citizens want to learn more about the Colorado courts, I hope they will look at the resources available on the websites of the Colorado Judicial Institute and the Institute for the Advancement of the American Legal System. I also hope they will schedule a presentation through the Our Courts Colorado program available through the Colorado Bar Association. Take the opportunity to learn about our Colorado judicial system and take advantage of programs that let you learn from and speak with a judge. You will learn they are human like all of us, and they are the guardians of the Rule of Law.

Andrew Toft is a Denver-based attorney.

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