The Honorable Marcia Krieger, former chief judge of the federal trial court for Colorado, retired from active service in March. The vacancy created by her retirement is critical for the state; the District of Colorado has just seven slots for active judges, so whoever replaces Judge Krieger will be deciding a substantial fraction of the federal cases heard in this state. For the sake of the citizens of Colorado, the process for selecting potential nominees should be fair, open, and transparent. An open process, with public involvement, is the best way to find the kind of principled, thoughtful, and impartial judges we need.
The federal trial court in Colorado (the “district court”) is one of the largest and busiest in the region. It decides cases that are important to all of us, on issues such as managing federal land, oversight of clean air and water, discrimination at work, and civil rights. It hears a wide range of commercial cases, helping insure that businesses in Colorado’s growing economy get fair and efficient resolution of their disputes. And this is the place where defendants stand trial on federal crimes like fraud, distribution of narcotics, and illegal gun possession. The vast majority of cases never get appealed, so the district court is the end of the road. It matters how the district court decides cases. For Colorado to continue to thrive, it needs a federal district court that is fair, effective, and efficient.
On any court, the quality of the judges plays a major role in determining the quality of the decision-making. Even more so on the district court, because federal judges have the right, under the Constitution, to stay for life. There are no term limits, and no retention elections. Whoever replaces Judge Krieger will likely be on the bench for decades to come. The influence of his or her work as a judge will only grow over time.
The final stages in the selection process happen in Washington, D.C. Ultimately, the president will nominate a person for the vacant slot, and the Senate will choose whether to confirm that person for a permanent judgeship.
Still, Colorado leaders can make their voices heard about how to choose the state’s newest federal judge. Sen. Cory Gardner will have an especially large influence. Commonly, if the president and at least one of the senators from a state are from the same party, then the president will ask for and accept a recommendation from the senator(s). President Trump will presumably do the same with the Colorado vacancy.
The question is, how will Gardner decide whom to recommend? Most importantly, he should get input from the public. The citizens of Colorado have the most at stake in this decision, and their voices should be heard. In years past, senators in Colorado have used nominating commissions to recruit and investigate potential nominees. These commissions have a long history; the first federal-court nominating commission was established in 1974, and over time, judgeships in 29 different states have been filled this way. Indeed, to this day, Florida’s senators accept recommendations from a nominating commission run by the state bar. Commissions work. And they are a great way to ensure that the process for filling this critical position involves input from beyond a senator’s inner circle of favorite advisers.
In fact, Sens. Gardner and Michael Bennet both convened committees in 2015, in a process that converged on Regina Rodriguez as a nominee both supported. (The Senate never took up her nomination for a vote, and it expired with the end of the Obama presidency.)
There are many ways to put together a commission. Retired U.S. Supreme Court Justice Sandra Day O’Connor, together with the University of Denver’s Sturm College of Law, has laid out the most important features of a nominating commission. It should be “balanced — politically, ideologically and demographically.” The commission members should be appointed by multiple authorities — the senators themselves, but also state and local leaders, the local bar association, and others. The commission should have meetings that are open to the public. And, overall, the commission process should be designed to attract a broad pool of qualified applicants as candidates for potential nomination. That goal, more than almost any other, should matter to Coloradans. We want the best and most qualified nominee for this judgeship, not just somebody who has connections to politicians.
Gardner should take the lead by forming a balanced, open nominating commission to recommend potential nominees for Colorado’s vacant federal judicial seat.
Keith Bradley is a partner at the international law firm Squire Patton Boggs (US) LLP. Formerly at the Energy Department and the Consumer Financial Protection Bureau, he advises on regulatory compliance across a range of sectors and represents businesses in administrative and regulatory disputes.