The Nuances of Judge Selection in the State of Colorado - Assignment Example

Introduction: The purpose of the existence of the judiciary is an important one, especially in a political set up that claims to be democratic. It exists so that the rule of law is protected and conserved. In order for this to be accomplished, it is the responsibility of the judges to interpret the law in a fair manner (Hogan, 2006). They need to remain separate from politics and related influences in order to conduct responsibilities in an appropriate manner. In any given democratic set up therefore the importance and the primacy of a free and impartial judicial wing cannot be stressed enough and it is for this purpose that the need of ensuring competent and impartial judges through a democratic process of selection assumes critical importance. The issue was addressed first, by the American Bar Association in 1937, when in the House of Delegates a policy favoring “merit in selection” was adopted. This position has been reaffirmed again by the ABA. The responsibility of ensuring that the one responsible for judiciary and related decisions the country cannot just rest with the domain of the ones involved to day basis. The history that has decided the process of judicial selection in most states is mired in controversy and debate. Historically, the executives and/or legislatures selected the first judges in the USA as a nation state (Mullarkey, 2006). They served lifetime terms. With the emergence of populist ideals, a number of states took to the selection of judges by the people’s will thereby limiting the terms that a judge was allowed to serve. The sentiment, in majority, however has always been to ensure that the process of judicial selection be made non partisan, so that the keepers of justice are kept from away from the corrupting power of seeking authority by a populist mandate. Efforts were made throughout the early part of the 1900s so come up with an alternate plan for the selection judges for the highest judicial positions in the states of the USA. The most important amendment that was affected by these efforts was the Missouri Plan of 1940s. This was also the central plan as far as implementation was concerned. The citizens of Missouri first adopted the plan. It is also known as merit selection scheme, commission-based appointment, or “The Missouri Plan” after a politically motivated attempt to elect an unqualified judicial candidate raised public awareness and concern. Currently there are variations in the process of the selection of judges in the different states of the USA. These variations in methods include, Legislative Appointment, Executive Appointment. Nonpartisan Election, partisan election, and merit selection also referred to as the Missouri plan. The following analysis will explain the nuances of judge selection in the state of Colorado. The judges in the state of Colorado are selected based on Article VI Section 20, of the state constitution (Hobbs, 2006). The underlying principles utilized are that of the Merit selection as outlined in the Missouri Plan also known as commission-based appointment. In case of a vacancy, applications by the attorneys interested are sent to the commission responsible for nominations. The judicial nominating commission then interviews them. The commission makes recommendations for two-three of the most deserving candidates to the governor. There must be three nominees for appellate judgeships. (Denver County Court judge candidates are sent to the mayor instead of the governor). Members of the commission of the commission are chosen by the Governor, Attorney General, and Chief Justice of the Colorado Supreme Court. Two or three recommendations are then sent to the Governor. The vacancy is filled after the governor has conducted interviews. He is the one that appoints one of the nominees to the post. The term that is judge serves is for two years at the end of which he has to get reelected through the same process in case he wishes to continue in office. Aftrer the first term is served out, County Court judges come up for retention election every four years, District Court every six years, Court of Appeals judges every eight years, and Supreme Court judges every ten years. In order to help voters in making a choice evaluations are done occasionally by law (Mullarkey, 2006). These are then publicized. These are conducted by the State Commission on Judicial Performance; the body is made up of of six non-lawyers and four lawyers. The Chief Justice of the Colorado Supreme Court, the Governor, and the Speaker of the House and the President of the Senate appoint members of the commission. The evaluations help voters in making an informed choice, the process provides feedback to judges helping them improve. The process of selection of merit has its distinct advantages, the most obvious one being that the keeper or justice in the state, one of the most respectable positions, are kept away from the messy musings of partisan politics. The clear disadvantage however is that the process of selection rather than election in a democratic setup is an oxymoron and a contradiction in terms. The pros however outweigh the cons, need for reform arises only in cases where the existing set up fails to deliver. For all practical purposes, however the existing set up seems to have no viable or practical alternatives that show hope of offering better results. Question 2:  Briefly list or describe the subject-matter areas in which the Congress has legislative jurisdiction. Should Congress's jurisdiction be narrowed, broadened, or left as is? Please explain your answer. At first glance, the United States of America has changed and evolved as a nation since its statement of independence and the enactment of the Constitution in 1787. Yet, the political system has remained remarkably stable. The country still operates on a federal system, with the government being based on the separation of legislative, (Chapter 1), executive, (Chapter II) and judicial, (Chapter III) authority. The Congress is the legislative branch of the US governmental system. It remains a bicameral body, with differences between its two chambers, based upon the principles laid down by the founding fathers o the Constitution. However, if one was to indulge in a more extensive review of the workings of the US constitutional system, one would notice significant changes. The role of the federal government is far broader and more encompassing than had been imagined by the one who had written the constitution. The functions of the Congress initially had been restricted to the legislative jurisdiction on matters that were concerned primarily with those of federal importance. With the evolution of the state and its governmental systems and the growth of the US as a world power the role of the federal authority has increased manifold and the expectations out of the federal authority have risen in keeping with these expectations. The role of the Federal authority has thus been transformed; it now reaches into every given area of American life requiring the Congress to legislate on a variety of issues including those of taxation, space exploration, gun control and the ethics of cloning. Former US President Ronald M Reagan had once said, that he wondered about what the Ten Commandments would have looked like if Moses had them run through the US Congress. The US Congress is made up of the Senate and the House of Representatives; there are 100 members in the Senate and 435 members in the HoR. Most of the constitutionally enumerated powers of the US Congress are to be found in Article I, Section 8 of the Constitution (English, 2003). These are the explicit powers of the Congress; several Constitutional amendments have also granted the Congress additional powers. It also has implied authority derived from the Necessary and proper Clause of the Congress. The Congress exercises complete control over monetary and budgetary issues, because of the fact that it has control over authority for the promulgation and collection of taxes, duties, imposts and excises, to pay the debts and look after the overall defense and welfare of the country. The additions were made in the Sixteenth Amendment that served to extend the Congress powers of taxation to include income taxes. The Congress has exclusive authority over the appropriation of funds. The Congress also has other powers related to the credit facilities and borrowing status of the US; it helps in the regulation of commerce, and the management of the international trade relations with other countries, it is also responsible for coining money. The Congress is also given an important role in the management of national defense. This power is inclusive of the exclusive authority on the declaration of war (Cushman, 2006). The Congress also has singular authority to increase and sustain the armed forces, and to make rules for the military. It has the power for the establishment of post offices and post roads. It can issue patents and copyrights, fix standards of weights and measures, establish courts inferior to the Supreme Court. In other words, it has the right to, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof”. It has the authority related to the admittance of new states to the Union (Article IV). Finally, one of the most important derivative powers of the US Congress is to act as the watchdog over the actions of the US President. This authority takes the manifestation of committees and is facilitated by Congress’ subpoena power. Congress also has the exclusive power of removal, allowing impeachment and removal of the President, federal judges and other federal officers. If one was to debate, the authority of the congress one could verify a number of kinks in the amour. Over the past century, the US President has gathered immense power, in both matters related to executive and legislative authority (Born, 1996). Most laws of the USA now emanate in the office of the White House. Presidents such as Roosevelt, who gave the nation the 14-point program, effectively taking the power away from Capitol Hill and into the White House, set the precedence. Foreign Policy is considered the exclusive domain of the President. Even today, when the USA is facing immense financial crisis, the country and the Congress, for that matter look to the President to offer them a solution. The two houses have been plagued by ineffectiveness; weapons such as the State of the union speech by the President set the precedence for legislation in the country. The overall image of the Congress has been the subject of much hilarity and ridicule because of the influence that the interest groups and lobbyists now have over the Congressmen. The Congress however accepts the role and play sit well. It is still the watchdog of the president’s office. No President can quite claim to pass a select piece of legislation without the backing of the House. The manner of change has been mostly positive, because had the Congress not adapted itself to the evolving nature of the American polity, the result would have been deadlock in political decision-making. The powers of the US Congress need to be let alone. It needs to be remembered that the two houses of the Congress are made up of some of the best minds in the country; the most seasoned politicians make it to the Congress. There is no real need therefore, to tamper with or change the power of the Us Congress. Question 3: Should morbidly obese people be recognized as a "suspect class" for purposes of equal protection analysis? Why or why not? The Equal Protection Clause is a part of the 14th Amendment to the US Constitution. It states that, “No State shall...deny to any person within its jurisdiction the equal protection of the laws”. The key to equal protection analysis is determining how public policy classifies people. Classifications are used in a wide variety of legislation, administrative rule making, enforcement, and other governmental activity. A major feature of contemporary equal protection is that if there is no classification, there will be no violation of equal protection. The classification might be as broad as an entire race or as narrow as a few individuals might. Suspect Class Status is essentially a presumptively unconstitutional distinction made between individuals based on race, national beginning, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy. Members of suspect classes, traditionally, are in a discrete" minority who possess an immutable trait like a race or their lineage, have a past that records discrimination or are incapable of defending themselves in a given political or social scenario. The threshold determination in equal protection analysis is the government bias for the classification at the core of the issue. A court needs to determine whether the classification operates to the disadvantage of some suspect class or impinges upon a fundamental right (Crawford, 1992). If this is the case, the court must strictly scrutinize the governmental conduct omitting application of the usual presumption of validity and requiring the government to come forward with compelling justification. If so, the classification must be examined to determine whether it rationally furthers some legitimate, articulate, or governmental purpose and therefore does not constitute invidious discrimination. Historically speaking, the judicial system of the US in general and the Supreme Court in particular has been at loathe to bestow “suspect class” status to groups beside the already accepted suspect classes i.e. the racial minorities and religious groups. the judgment in City of Cleburne v. Cleburne Living Center, Inc. (1985), is proof of the fact that the Courts refuse to even name the physically handicapped as being part of the suspect class. Obesity has, similarly been dismissed by virtue of the fact that it is manifestation of personal failing. Victims of morbid obesity have been stigmatized and discriminated against. The federal government has not funded solutions based on the best science, so in case of obesity, local governments and nonprofit groups have needed to step in with their own strategies. Like gays, obese individuals are the subject of discrimination in many spheres of daily life and it is illegal to discriminate against them. The case of people who suffer from extreme and morbid obesity, the fate is in many ways similar to that of the ones who are homosexual or have patients of AIDS (Pomeranz, 2008). Society has traditionally found it easier to put blame on the victims themselves for their own health disparities by pointing to failings of personal responsibility as the source of their health problems. Like the health problems of the people suffering from AIDS or the homosexual community, there are those that argue that obesity is the result of a person failing in the completion of his responsibility to his own self. This particular argument states that obesity is in essence the fault of the obese person himself. Biases that have their source in weight thereby become a common occurrence and even acceptable to an extent. the wight related bias is often cited as an excuse by both society and the government to not address health and economic disparities associated with obesity. The result of this disparity is that there is the absence of sufficient help for health measures in the public domain that address and help deal with obesity to the degree and the extent to which it needs to be dealt with. In line with history, interventions that are based on education have been the primary response by many government entities (Lee, Rosenbloom and O’Leary, 2005). However, unlike African Americans and gays, obese individuals have generally not been the subject of discriminatory laws aimed at depriving them of their civil rights. Nonetheless, obese persons have suffered from social and institutionalized biases that need to be addressed in their own unique form. As such, antidiscrimination legislation may be necessary. It is legal to discriminate against people based on their weight under the Constitution or federal law. There are several avenues to address the discrimination of distinct groups, but people who have attempted to use these avenues to bring claims of weight discrimination have been largely unsuccessful. If a law is enacted for the purpose of depriving obese individuals’ equal protection of the law, there would be a viable legal challenge to its constitutionality. What can be states in conclusion therefore is the fact that of the many communities in the country that could be counted as being suspect, people suffering from morbid obesity are definitely one of them, and the state should extend all the help that it can so that this class is protected against discrimination of every kind. Question 4: The US Constitution has been interpreted by the courts to allow members of the public to say rude, vulgar, and profane things to public officials. Do you think this is necessary or desirable in a democracy? Why or why not? The basis for the freedom with which individuals and the press express opinions without fear is embossed in the First Amendment to the US Constitution. This states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (First Amendment, US Constitution). This is the clause in the American constitution that has become the source of much headache given the fact that free speech ahs been interpreted by many as the right today what they feel like even of this means abuse of government and its officials. The following section will analyse the importance of free speech in the America in general and a democratic set up in particular. It will also evaluate whether or not free speech actually means that individuals and press have the right to abuse and, and say vulgar and rude things to public officials. Some argue that the origins of the freedom of speech lie in Mill’s works and yet Milton’s essay Areopagitica (1644) can be termed as the precursor to even Mill’s concept. The rationale for the freedom of speech lies in the fact that no opinion should be compelled to silence because there is a chance that there be an element of truth and genuine concern in any given opinion (Hathworth, 1998). To deny justice to these voices might just be a negative factor to the democratic processes governing a country. John Stuart Mill, (On Liberty in Utilitarianism Etc, 1910), described the classical exposition of this paradox. In general, the importance of a system that allows free speech as a basic right cannot be underestimated. The interpretation of free speech as given by the courts is one that allows the citizen of the country to criticize and to question. Before going into the arguments about how important or unimportant the interpretation is, and whether or not there should be restrictions placed on the freedom, it would be interesting first to outline the rationale behind the concept of freedom of speech. The concept of free speech is hailed by some as being the standing pillars of democracy that ensures citizen participation and keeps the governing authority in check by making it open to questions from those that it sees to govern. This analysis is based on the simple assumption that free speech is a necessity, it might have its problems but it cannot be done away with if democracy in the national order has hopes of surviving. Practically speaking, the purposes that the freedom of speech serves are manifold. The most important and arguably the primary notion of the reason for it existence is the fact that the process of decision-making at all levels is precede by discussion and consideration of a representative range of views (Cooray, 1997). In almost all cases the process of decision making that follows, a trend of discussion and consultations has a better chance of success than one that has had no debate. This is true by virtue of the fact that discussion ensures that the ultimate decision is mirrors of popular opinions and needs, interests and demands representative of the parties involved. The Freedom of speech, is therefore a necessity at every step of society. Importance of the Freedom of expression for the individual and the right to voice concerns and express criticism by way of dissatisfaction that the government has access to making decisions press extends its influence to the efficient working of the government system as well. It is only when the people have the rwhen criticisms of a government are freely voiced, the government has the opportunity to respond to answer unfair comments and criticisms about its actions. Conversely, the restriction on the Freedom of speech and expression the result is the circulation of rumors, unfair criticisms, comments and downright falsehoods. With the removal of a effective and institutionalized system of feedback, there is no outlet for the grievances and the government is in no position to answer or address issues that should be addressed. It is therefore in a government's interest to have criticisms in the public arena where it can answer its critics and correct its mistakes. The governing authorities exercise a greater level of control over communication systems as opposed to the control exercised by individuals and groups. It has the ability to present its view. The freedom of speech and expression is the most powerful expression of political rights that the citizens have, although private property is needed for its expression and use. In the absence of free speech the possibility of civic political action is lost. There can be no resistance to injustice and oppression is thus made possible. In the absence of freedom to express, there would be no free elections. When a country is between elections, the freedom to express and the views expressed by virtue of this freedom by citizens help control tyrannical rule (Hill, 1992). Without the freedom of expression it would be impossible to wait for political liberty or the resulting economic individual choices. The sine qua non of a democratic society is the freedom of speech. The contemporary world is a place where unfettered freedom is in retreat. One of the difficulties that lie in a discussion on freedom of expression is that it has inherent to itself, the ‘paradox of freedom’ as named by the liberals- ". . . there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it might be considered." Voltaire has been paraphrased, "I disapprove of what you say, but I will defend to the death your right to say it." There is no way out the essence of freedom of speech is such that the tolerance of a great deal of nonsense is part and parcel of its effectiveness, even of matters which are in bad taste. Scholars like Justice Douglas of the American Supreme Court, have stood in rigid support of absolute freedom of speech. They argue seemly against the restrictions based on many of the common exceptions. In Roth v US 354 US 476 (1957) a case about obscenity, Justice Douglas said in dissent: “"The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the Judge or jury thinks has an undesirable impact on thoughts but that is not shown to be part of unlawful action is drastically to curtail the First Amendment." The bottom-line therefore is that there are a number of factors that can be cited in support of the retention of the freedom of speech and expression. There is the flip side to the right that the citizens enjoy by way of the fact that the powers of free speech are abused by individuals and by the press wherein the government and its officials are abused and ridiculed. The idea in any given polity however should be that political and the civic system governing life needs to ensure that there be in place institutionalized means of grievance outlet so that there is effective reduction in the nature of conflict, so that the best can be made out of a difficult situation. Question 5: Your client, a travel agency, is negotiating with the US National Park Service to offer holiday travel packages to Yellowstone National Parks in the United States. Your client intends to market the travel packages to select to gay couples who are of Asian extraction. Do you see any potential violations of federal constitutional rights that your client should know about? Please summarize your advice. Federal Constitution rights in the USA are guaranteed to the citizens mainly by way of the Bill of rights. There are three basic problems that the travel agency could possibly encounter while selling the tourism package to gay couples of Asian extraction. First, in keeping with the Wyoming Consumer Protection Act, W.S. §§ 40-12-201 through 209 that covers promotional advertising of prizes, the travel agency needs to be careful in the designing of the travel brochure. This essentially means that the attractions on offer during the tour should not be overemphasized nor should the package promise consumers attractions that are false or that do not exist. If this happens, the Consumer protection laws could be activated thereby creating grounds for an injunction against the travel agency. Secondly, the travel package cannot be targeted at specific groups because of sexual orientation or on ethnicity especially by virtue of the fact that the product being marketed i.e. the Yellow Stone National Park, is a national asset (YSNP Website); it is by no means a private commodity on sale (NPS Website). The travel agency would thus be on a safer side if the marketing were not explicitly based on homosexual couples of Asian ethnic background. Finally, by virtue of the fact that the Agency is trying to attract clientele to sell the attractions of a wildlife and natural preserve, it has to take responsibility of the safeguard of the inmates of the preserve including the wildlife, the flora, and the fauna. Damage to the preserve would be a responsibility of the travel agency. The tour should therefore by guided for the most part and the tourists and be made aware of the fact that they are, under no circumstances to bring harm to the preserve. It is here in fact that there is a conflict with a federal fundamental right enumerated in the Second Amendment to the Bill of Rights, that states "A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed”,(US Firearms Law). A person owing a firearm and carrying it would be an automatic threat. The only solution would be a pre sale contract which makes it clear that for the duration of the tour, the consumer would not be allowed to carry firearms to the preserve. Reference: Born G, 1996, International Civil Litigation in US State Courts, pub, Kluwer law International, pp512-514 Cooray M, 1997, Freedom of Speech and Expression, accessed July 18, 2009, < http://www.ourcivilisation.com/cooray/rights/chap6.htm> Crawford J, 1992, Language Loyalties, pub, University of Chicago Press, p241 Cushman C B, 2006, An Introduction to the US Congress, pub, M E Sharpe Publications, 157-172 English R M, 2003, The United States Congress, pub, Manchester University Press, pp160-166 First Amendment to US Constitution, accessed, July 18, 2009, http://caselaw.lp.findlaw.com/data/constitution/amendment01/06.html#1 Hathworth A, 1998, Free Speech, pub, Routledge, pp174-180 Hill S, 1992, The First Amendment: For Sale to the Highest Bidder?, pub, Seattle Community Catalyst Hogan S O, 2006, The Judicial Branch of State Government, pub, ABC-CLIO Publications, pp145-148 Hobbs G, 2006, Colorado Judicial Merit Selection, A Well-Deserved 40th Anniversary Celebration, pub, Colorado Attorney Lee Y S, Rosenbloom D H, O'Leary R, 2008, A Reasonable Public Sevant, Pub, M E Sharpe Publications, pp134-136 Mullarkey M J, 2006, Merit Selection of Judges, pub Colorado Judicial Department Pomeranz J L, 2008, A Historical Analysis of Public Health, the Law, and Stigmatized Social Groups: The Need for Both Obesity and Weight Bias Legislation, pub, Nature Publishing Group, Obesity, Vol.16 No.2, pp93-101 US National Park Service, accessed July 19, 2009, US Firearms Law, accessed July 19, 2009, < http://lawdigest.uslegal.com/civil-rights/firearm-laws/7173/> Yellow Stone National Park, accessed July 19, 2009,< http://www.nps.gov/yell/> Read More