Limit the Judges targets 2008

All Colorado judges would be limited to three terms of four years each, beginning in 2010, under a constitutional amendment proposed by a citizens group hoping to qualify it by petition for the 2008 ballot. Limit the Judges, a campaign committee headed by former Senate President John Andrews, took the first step today toward getting its proposal approved by the Secretary of State so signature-gathering can begin.

Andrews led last year's unsuccessful campaign for Amendment 40, which would have placed a "ten years and out" limit on state Supreme Court justices and Appeals Court judges, including incumbents. He said the revised plan differs in applying uniformly to judges all levels, raising the limit to 12 years, and excluding incumbents.

"This approach could have won in 2006," Andrews said, "especially the provisions taking in district judges and avoiding retroactivity. We expect it will be a winner in 2008, building on more than half a million votes that we received from people who agree our courts lack accountability."

"Colorado still needs judicial reform, even though it was blocked last year by a campaign of distortion from self-interested lawyers and judges," he added. "Judges too often legislate from the bench, and we keep seeing examples of individuals with virtual lifetime appointments whose character is deficient."

Andrews noted that while judges in this state face periodic retention elections and aren't appointed for life, they enjoy a retention rate of over 99% under the current judicial performance review system, which he called "toothless."

He said his organization, Limit the Judges, is recruiting local leaders and beginning to fundraise toward a campaign goal of $2 million.

A closer look at the Jena affair

When a gang of “chip on their shoulders” black youth terrorize and beat white kids, it’s called an “expression of ethnic identity”. But if the white kids band together for protection, it’s called “racist white supremacy.” As shown by this Snopes.com fact check of the Jena affair, the assumed direct linkage of the noose incident and the beatings omits significant intervening events.

The biggest racists in this whole mess are Jesse Jackson and Rev Al Sharpton. The foundational outrage in all of this is the Progressive theological notion that “only the dominant group can be racist”, which is utter nonsense. Either we strive for Martin Luther King’s color blind society or we do not.

The reverse discrimination to “undo the years of discrimination” is fraudulent. And there is no mechanism to turn it off, no way to measure when enough is enough. It is conferring perks and privilege on the basis of skin color, which has fragmented our nation into warring racial and ethnic groups. Diversity is not our strength! It is a source of weakening, division, and conflict. But then, weakening America has always been the Progressive agenda.

Our forefathers realized that in order to build unity they had to leave religious denomination off the table. So must we now concerning race and ethnicity. We enjoy our rights and liberties on an individual basis, not on the basis of our race. We need to eliminate the 3 pages of racial group check boxes we find now on every government application.

The racist agitators such as Jackson and Sharpton need to be shamed, ostracized, put out of business, and recognized as the hypocrites they are.

And as for Worldcom

"Let justice run down like water, and righteousness like a mighty stream.” [Dave Crater says he thought of those words from the Prophet Amos when a reader of this website wrote that while he may be right in asserting the innocence of Joe Nacchio, he went too far in making the same claim for Bernie Ebbers of Worldcom. Here is Crater's rebuttal. - Editor] The recent white-collar legal lynching that brought down innocent former Qwest Communications CEO Joe Nacchio is only the latest in a string of hostile anti-business rampages conducted by America’s attorneys, judges, and bureaucratic regulators in the wake of the 2001 stock market collapse.

That market collapse brought the Nasdaq composite from over 4500 in the spring of 2000 to under 1500 by the end of 2002 – a loss of over two-thirds of the market’s peak value. This market-wide collapse in the New Economy destroyed billions in stockholder wealth.

There was not a single CEO, accountant, or consultant in America responsible either for this collapse, or for its effects on his or her individual company.

Yet seeing the legal and political opportunity of a lifetime, attorneys, judges, and regulators have waged a full-scale legal assault on prominent members of the American business class over the last five years, positioning themselves in the process as saviors of the public trust and of the nation’s retirement savings against greedy corporate thugs.

The greedy thugs are not in the business community. The greedy thugs are in posh government and law firm offices across the nation.

Like recently and justly disgraced Durham County (NC) District Attorney, Mike Nifong, these greedy thugs have abused their legal and moral authority in order to build ambitious careers for themselves in law, media, and government and to re-distribute the wealth of their victims to people who have no moral right to it. Among the chief offenders is now-governor of the state of New York, Democrat Eliot Spitzer, who between his election as state Attorney General in 1998 and his 2006 election as governor, conducted an arbitrary reign of leftist terror on Wall Street unlike any the nation has ever seen.

The description by the president of the U.S. Chamber of Commerce, Thomas Donohue, of Spitzer’s brazen power-abuse aptly describes the attitude of ambitious prosecuting attorneys everywhere (http://www.iht.com/articles/2005/01/05/business/spitzer.php): "Spitzer's approach is to walk in and say, 'we're going to make a deal, and you're going to pay $600 million to the state, and you're going to get rid of this person and that person, and if you don't do it by tonight, we're going to indict the company,"' Donohue said. "It is the most egregious and unacceptable form of intimidation we've seen in this country in modern times."

Colorado U.S. Attorney Troy Eid – a Republican, showing the intimidation and leftist propaganda justifying the intimidation are a bi-partisan affair – proudly pronounced a few weeks ago that the conviction of Joe Nacchio was the largest for insider trading in the nation’s history. (Mr. Eid was clearly abreast of the current state of the fierce competition transpiring among the nation’s prosecuting attorneys to bring in the largest conviction.) The prosecution and conviction of Bernard J. Ebbers, founder and former CEO of MCI-Worldcom, was the largest fraud and conspiracy conviction in history in terms of the prison sentence it secured. Mr. Ebbers is now serving 25 years in the Oakdale Federal Prison in Oakdale, Louisiana.

Like Mr. Nacchio, Mr. Ebbers was a business phenomenon. And like Mr. Nacchio, Mr. Ebbers is an innocent man.

The son of a traveling Canadian salesman, Ebbers worked as a milkman while bouncing between the University of Alberta, Calvin College, and finally Mississippi College. Ebbers joined a few others to, in the best tradition of American risk-taking entrepreneurship, found Long Distance Discount Services, Inc. in 1983. By 1995, the company had acquired 60 other companies and had changed its name to Worldcom. At his peak in 1999, Ebbers had gone from being the son of a traveling salesman and running college milk routes to being worth $1.4 billion and being listed at number 174 on the Forbes 400.

To many of the nation’s attorneys and judges, and to many in the public, such unbelievable evidence of America’s promise is no longer something to be celebrated. It is something to be abhorred, and its chief incarnations villains to be prosecuted and legally pillaged whenever the political opportunity arises.

Not helping, of course, is the slide, rapid throughout the 20th century, toward a welfare state that arbitrarily, inconsistently, and ever-increasingly regulates every aspect of American business and glorifies the government bureaucrat who produces nothing. Accounting regulations are a constantly-changing circus that increasingly diverges from financial reality and that, when violated in either substantive or cosmetic fashion, calls down in the name of “Accounting irregularities! Control the businessman!”, even more oppressive, arbitrary and wealth-destroying folly such as the Sarbanes-Oxley act of 2002.

And as this folly progresses to greater and greater heights, the integrity and virtue of a government bureaucrat or attorney is only questioned if he files the most absurd rape charges against innocent college lacrosse players who weren’t even at the scene of the crime, or if he carries on a pugnacious rampage on Wall Street against anything with a white collar. And even in the latter case, he still can become governor.

Also not helping things is the long antipathy of America’s legal system toward the historic Christian religion. Attorneys and judges are, by and large, secularists, and many of them aggressively so. Businessmen, on the other hand, earning their wealth by actually producing things and wealth for other people – as opposed to sopping and legally plundering their millions from productive people – tend to believe in God and show it with their lives.

These are both generalizations, of course, carrying obvious exceptions. But this is one of those obvious things that is true but not really worth saying. The generalizations are accurate, and Ebbers at the time of his prosecution was a member of Easthaven Baptist Church in Brookhaven, Mississippi, regularly teaching Sunday school and attending Sunday morning worship. When the allegations against him were first brought to light, Ebbers addressed the congregation and, like Joe Nacchio, Charles Keating, Martha Stewart, and a host of other business victims of recent legal outrages, insisted on his innocence. “I just want you to know you aren’t going to church with a crook,” he said. “No one will find me to have knowingly committed fraud."

Well-said. Ebbers said “knowingly” because he knows how this game is played. Keating, who also demonstrated classic religious sensibility in using his wealth to donate millions to Mother Theresa, was convicted in 1992 of committing fraud unknowingly – an impossible crime. The conviction was overturned by the 9th Circuit Court of Appeals, which informed the lower judge, none other than Lance Ito of O.J. Simpson fame, that fraud requires intent. But only after Keating had done four and a half years of hard time.

Another important strategy of the game is to threaten and intimidate with potential charges in an attempt to get the victim to admit guilt. If the victim does “confess,” send him/her to prison, levy heavy fines, and hold a press conference pronouncing to the world that justice has been done. If the victim does not admit guilt, try to get the victim to make some statement that can be turned into a charge of lying to regulators. Then drop the original charges (Martha Stewart) or greatly reduce them (Ebbers), and make the main force of your prosecution that they – horror of horrors – lied to you in an effort to avoid your witch hunt. And bump up the sentence to show them the mistake they made in not admitting their guilt in the first place.

Stewart was originally hit with charges of insider trading in ImClone stock. She was convicted on zero counts of insider trading, but on four counts of lying to investigators and obstructing “justice.” Ebbers was originally hit with a 15-count indictment. Those charges were then dropped and replaced with one count each of fraud and conspiracy and seven counts of making false statements about the original counts.

Keating’s conviction was overturned and Stewart, not seeing the point in fighting with legal agents who don’t care about justice, did 6 months voluntarily, paid fines, and acquiesced to regulation of her business involvement so she could be done with it. Ebbers was not so fortunate. He received a sentence, affirmed by the 2nd Circuit Court of Appeals, that, in the words of the judge who wrote for the court, was “longer than the sentences routinely imposed by many states for violent crimes, including murder." A law-abiding Southern Baptist, Ebbers drove himself to prison.

There is no other name for this but moral and legal corruption. The people who have perpetrated it are themselves criminals. In addition to destroying the lives of innocent people whose only crime was being a wealthy executive at the time of a stock market collapse, it is transforming America from a nation of wealthy entrepreneurs in big skyscrapers and country clubs into a nation of wealthy attorneys and bureaucrats in big skyscrapers and country clubs. We are a wealthy nation, and unless we want to be a poor nation, that wealth must be possessed by wealthy people.

The only question is whether we will be a nation that resents having that wealth in the hands of people who have made many others wealthy by creating jobs and producing things large numbers of people want and need – and who cannot control when the entire economy tanks – or whether we will be a nation of institutionalized envy that presumes the wealthy businessman guilty until proven innocent and uses the power of its legal system to plunder the most productive and re-distribute their wealth to everyone else every time the market crashes.

The verse from the Old Testament prophet at the top is no mere rhetorical device. It is a reminder that a God exists who cares about justice, knowledge of Whom prevents the poles of our minds from becoming reversed and the resulting moral current that powers our lives from running backward. When the current runs backward, we call the guilty innocent and the innocent guilty. But there is a Day coming soon when the poles will be restored, and justice will flow down like water and righteousness like a mighty stream. In that hour, if not before, naked legal ambition and self-serving public prosecutions that use the power of the state to condemn the innocent will no longer play in the court of public opinion. For the court of public opinion will no longer be one governed by stock market losses, the vagaries of economic fortune, and widespread cultural envy. It will be governed by justice, and by the people in this life who stood for it and who contended for the innocent – even the rich innocent – in their hour of trouble.

Which side will you be on?

The innocence of Joe Nacchio

“Also I will make justice the measuring line," we read in Isaiah after sadly reading the headlines, "and [I will make] righteousness the plummet; the hail will sweep away the refuge of lies, and the waters will overflow the hiding place" (Isa. 28:17). The rise of Joseph P. Nacchio is one of the great American success stories of the 20th century. And the demise of Joseph P. Nacchio is a turn-of-the-century nightmare for a nation and a legal system that have lost their way.

The involvement of Republican officials, moreover, in the white-collar lynching of an innocent man, not unlike the Republican lynch mob currently screaming for Congressman Doug Lamborn’s blood in El Paso County, testifies to the simultaneous manner in which the modern conservative party has lost its intellectual and moral roots and diminished its influence as a conserving political force. If America is, as French filmmaker and terrorism opponent Pierre Rehov claimed last week at a Denver event organized and promoted by our own distinguished blogmaster, “the last fortress,” it will not remain a fortress for long without a renaissance of real character and conviction within its conservative party.

The son of an Italian immigrant who worked as a Brooklyn longshoreman and bartender, Nacchio earned a B.S. in electrical engineering and an MBA from NYU, and an M.S. in Management from MIT.

Few sons of bartenders do this. Even fewer do what Nacchio went on to do both in a quarter- century at AT&T and in five years at the helm of Qwest Communications. In the wake of telecommunications deregulation in 1996, Nacchio was recruited by Phil Anschutz, the Denver business magnate, founder of Qwest, and hugely (if quietly) influential conservative, to take the telecom public and turn it from a regional Bell company into a national communications and Internet powerhouse.

Nacchio delivered in spades. Between Qwest’s 1997 IPO and 2001, the stock rose 600%.

During this period, Nacchio was made chairman of the National Security Telecommunications Advisory Committee and was granted a Top Secret security clearance. One can still find on the Internet glowing articles from the period about Nacchio, whose net worth had reached $170 million before he was 50.

Then the so-called “bubble” burst of 2001 occurred. The plunge affected the entire New Economy. Qwest stock plummeted, along with that of all its competitors. Historical stock prices for Qwest, British Telecom, Sprint, and Deutsche Telecom cement the point. Here are links for the relevant graphs:

(Qwest) http://finance.yahoo.com/q/bc?s=Q&t=my&l=off&z=m&q=l&c= (Sprint) http://finance.yahoo.com/q/bc?t=my&l=off&z=m&q=l&p=&a=&c=&s=s (British Telecom) http://finance.yahoo.com/q/bc?t=my&l=off&z=m&q=l&p=&a=&c=&s=bt (Deutsche Telecom) http://finance.yahoo.com/q/bc?t=my&l=off&z=m&q=l&p=&a=&c=&s=dt

Nacchio was no more responsible for Qwest’s plunge than his fellow telecom CEO’s were responsible for their stock plunges. Enron and Worldcom stock tanked during this same market plunge, and their management was just as blameless for it.

If there had been accounting irregularities at Qwest – there was no evidence of this, despite frenetic accusations that an incredulous Nacchio refuted – those irregularities would not have caused the stock to plunge. Accounting irregularities do not cause stock plunges. This was a market- and economy-wide degradation in future earning potential.

Nonetheless, self-serving and public-pandering SEC regulators and attorneys swept into Wall Street like a horde, assuming their easy prey guilty until proven innocent. “Insider trading” and “cooking the books” and “defrauding little old ladies of their life savings” were the self-righteous rallying cry. Insider trading was the hook and the book with which they got Nacchio.

The idea of insider trading is, of course, nonsense. Economists who still maintain an understanding of the moral principles underlying the classical free market – a dying breed indeed, such as the late Milton Friedman and Thomas Sowell -- have explained that, to the degree the nebulous idea of insider trading has any discernible meaning, it is a virtue rather than a vice. Management ownership of company stock is one of the greatest incentives to good company performance that exists, sales of stock by those insiders are a matter of public record, and such sales quicken the speed at which company information is communicated in that company’s stock price. It is restriction of insider sales which introduces inefficiency, and thus volatility, into the market and increases risk to the Little Guy.

Since insider sales can never be large enough to move stock prices by themselves and do not deceive anyone in any way, including those who buy the shares sold by the insider, the modern “insider trading” mentality amounts to an expectation that company executives must share in any stock losses of the companies they manage. Otherwise we will suspect him, or in the abominable case of Martha Stewart, her, of “insider trading” and proclaim to the world that she is a villain worthy of doing hard time.

Selling stock in a company you help manage is no different from selling a car that you, as an insider with respect to that car, believe has reached the point of being defect-prone. As long as you commit no dishonesty with respect to the person buying your car, you are engaging in a perfectly legitimate market transaction, even if you do not disclose to the buyer every opinion you have developed about the car from long use of it. Information is always asymmetric in any market. Penalizing those with the best information in the name of protecting the Little Guy is an ideal way to destroy the efficiency of a market and, by extension, the future earning power of the Little Guy.

Martha Stewart and Joe Nacchio both committed identical crimes: being successful in business and making stock sales at the right time. Their being successful in business destroyed the public sympathy to which they were rightfully entitled as they were subjected to such legal outrages. The list of other innocent victims in American business in the last 50 years who have had their lives ruined by the all-purpose “insider trading” tag is long and distinguished. And it shows no signs of abating. It is another of the many symptoms of the widespread antipathy toward business and wealth creation that accompanied the rise of the welfare state, and the concomitant loss of belief in moral capitalism, or anything moral at all, in the 20th century.

In Nacchio’s case, the judge who presided, the federal District of Colorado’s Edward Nottingham, was a Bush 41 appointee. Nottingham, telling Nacchio his crimes represented ones of “overarching greed,” sentenced him to 6 years in prison and fines amounting to over $100 million. Nacchio had already spent $40 million on a tepid legal defense that, as any defense is tempted to do when faced with an irrational witch hunt based on arbitrary, baseless charges, amounted to little more than a play for sympathy and a beg for mercy.

Some of Judge Nottingham’s statements at Nacchio’s sentencing are unbelievable: Nacchio had family and a good job in New Jersey, said Nottingham, but he came to Qwest “because he couldn’t turn it down.” Apparently, any virtuous man would have turned down an offer to be CEO of a major American firm, and Nacchio’s failure to do so just shows what a greedy creep he is. Judge Nottingham could have remained a lowly state judge, but he accepted appointment to the federal bench “because he couldn’t turn it down.”

Nottingham then taunted Nacchio, “I would bet anything Mr. Nacchio…wishes he would have walked away from Qwest in January 2001when he had a chance to do so.” Yes, Your Honor, there is little doubt he does, just as you would wish the same had you known your success would lead to such a preposterous injustice.

After the hearing, U. S. Attorney Troy Eid, a Republican appointed by a Republican, said the Nacchio case was the largest insider trading suit ever filed in the nation based on the number of counts (19), the amount of money involved, and the length of prison term. “Justice worked here,” he proudly told a crowd of news reporters and onlookers.

Thankfully, justice did eventually work in the famous case of Charles Keating, convicted in 1992 on vague charges related to the savings and loan collapses of the 1980’s – collapses driven by arbitrary and constantly changing government regulation of the banking industry, not by anything Keating did wrong. Keating was a boy scout who campaigned against pornography and donated millions to Mother Theresa, but he was steamrolled just as Nacchio was. He spent four and a half years in prison after a kangaroo trial presided over by O.J. Simpson judge Lance Ito. The 9th Circuit Court of Appeals, the nation’s most liberal appeals circuit and no friend to business, later overturned his conviction. Judge Ito, they said, had failed to instruct the jury that Keating must have criminal intent to be convicted of fraud. Ito allowed Keating to be convicted of accidentally committing fraud.

It is possible the inane conviction of Nacchio, who has a wife and handicapped son, may also be overturned on appeal. But Nottingham denied Nacchio’s request to be free on bail pending appeal, meaning Nacchio would have done time for crimes he did not commit had not the 10th Circuit Court of Appeals on Aug 22 overturned this ruling by Nottingham. Two weeks after he self-righteously taunted Nacchio, it came out that a drunken Judge Nottingham had spent $3,000 at a downtown strip club and $150 on an internet dating service. (Irrelevant to the merits of this prosecution, but so much for judgmentalism about things someone can't turn down and wishes later he had.)

This is the kind of circus the American justice system has become under the onslaught of modern amoral liberalism. Rather than the executor of justice, the system is becoming a monument to injustice, and Republicans are among its chief offenders. U.S. Attorney Eid publicly lamented the 10th Circuit ruling, saying, “We hope the defendant will begin serving his sentence as soon as possible."

Pierre Rehov called America “the last fortress” because there is a legacy of moral justice here that exists nowhere else in the world. That legacy still preserves hope, but that hope will continue to fade rapidly unless somewhere, somehow basic moral sanity can be restored to a legal system that has become in many places little more than a towering refuge of lies.

Mr. Nacchio, I have no reason to think you will ever read this, but if you do, I want you to know I join the honorable Mr. Anschutz (who took the stand at trial despite his famed passion of privacy) as a character witness on your behalf. You are a decent man, and I hope you and your family know and believe and can find some comfort in that future day when "hail," in Isaiah's metaphor, will sweep away the refuge of lies, and water will overflow the hiding place of those who aggrandize themselves by calling the innocent guilty. I hope you can hold on. I hope you can believe. And I hope in that final day you will be found faithful in a Christ who atones for sinners -- for all of us -- and who ultimately bids you pass from this unjust life into the awesome presence of eternal justice.

Andrews interview: Judicial reform push continues

Former Colorado Sen. President John Andrews, the proponent of last year’s costly and contentious “Limit The Judges” proposal to place term limits on the state’s top judges, isn’t wavering in his efforts, Law Week Colorado found during a recent interview. At the time of the interview, Andrews was coming off a more modest defeat — the failure of bills aimed at changing the makeup of the commissions that are charged with reviewing judges' performance. Andrews pleasantly greeted Editor Don Knox, and he talked slowly and at length about his positions regarding the judiciary and his experience with Colorado’s organized legal community. The interview took an hour, and it was conducted in Andrews’ third-floor office across Grant Street from the Capitol.

Question: What’s more of a focus for you, judicial term limits or judicial performance commissions, or are they equal?

Answer: The starting point of our judicial reform movement with Amendment 40 last year, and which will probably continue in 2008 with another ballot issue, is the premise that the courts are out of control, and we’re looking at different pressure points to try to remind the judicial branch that independence of undue influence should not mean the prerogative to make up the law and depart from the written text of the Constitution. I believe if we had not made Amendment 40 retroactive it would have passed, so there is, I think, a great reservoir of common-sense voter support for term limits in all three branches of government. They haven’t yet reached the judicial branch, but I think they would have reached the judicial branch in 2006 if our design of Amendment 40 had not given opponents an opportunity to raise the specter of some sort of reprisals against sitting judges or packing of the court by the next governor.

We also would freely admit in stepping back and evaluating the Amendment 40 effort that simply placing a 10-year-and-out ceiling on the service of Appeals Court judges and Supreme Court judges would not of itself assure that judges more carefully would follow the law in the future. In other words, term limits for judges is decidedly a blunt instrument, but the screaming panic that it stirred in the bench and bar establishment, this little, closed, self-protecting club, certainly signaled that even though it’s a blunt instrument and an inexact way at getting at their unaccountability, it certainly got their attention.

Moving into 2007, I was glad that Sen. Ted Harvey and Rep. Ken Summers each wanted to bring back the Evans bill of 2004, which made, I thought, a number of reasonable, modulated changes to the nominating commission process. I was not surprised that a Democrat-controlled judiciary committee in the Senate, later in the House, slapped down those bills. I was, however, disappointed that the (Colorado) bar association, after leading me to believe that they wanted to work constructively toward incremental reforms, after defeating Amendment 40, expressed no willingness to work toward incremental reforms when presented with the Harvey bill in the Senate and the Summers bill in the House this last legislative session.

In 2008, I’m still hopeful that the bar association, the Colorado Judicial Institute, the center directed by former Justice (Rebecca Love) Kourlis over at DU, and perhaps legislators on the Democrat side of the aisle will get together to try to do something about the nominating commissions. I don’t know that there’s any amount of repair to the nominating commissions that sufficiently addresses that broader concern about unaccountability of our judges and a culture of arrogance and what I’ve called a ‘God complex’ among the judges, which they believe licenses them to make up the law and disregard the written text of the Constitution. Long answer, but that’s sort of a stream of consciousness of what happened last year, this year and what may happen next year.

Q: You mentioned the Colorado Bar Association and not getting anywhere in negotiating with it on those bills. Are there meetings planned this summer, this fall, and are you in invited to those meetings?

A: No one has approached me at all. I wrote in The Denver Post of my dismay at the intellectual bankruptcy of the CBA spokesman who testified against the Harvey bill in the Senate last February. (Andrews identifies him as D.A. Bertram). Then Pete Willis (of Kutak Rock), who had been one of the bar association emissaries to me during the Amendment 40 effort, testified for CBA at the hearing where the same bill was taken up and killed in the house, and, I really expected better of Willis. But, lo and behold, at that hearing, all he said was more or less the bar association believes this is a bad bill. ‘The bar association will be working on something which we believe addresses the admitted room for improvement in the nominating process, and when we have that, we’ll be in touch with you.’ He made not a single specific criticism of the bill that was before the committee. He made not a single specific suggestion of what could or should be done, and what they claimed would be forthcoming from CBA.

After the hearing, in the corridor, I told him politely but very bluntly that it appeared to me that the bar association was acting in bad faith, that there is no genuine bona fides for improving the nominating process. And I reminded him that we had sat in this conference room last summer with Justice Kourlis, with John Moye from the bar association and with himself, and with Judge (Dennis) Graham from the Court of Appeals. I believe it was the four of them and me. And I reminded him that they had told me at that time if we dropped the amendment, or we didn’t succeed in passing the amendment, we could count on constructive cooperation toward reform in 2007, and I have yet to see any evidence of it during the legislative session, and I have yet to hear a word from anybody since then. I did I ran into Willis a month or so later. Willis says, ‘We’re working on it, you’re going to like what we’re going to do, we’re starting to get people moving.’ Generalities were given by way of encouraging me, but I’ve yet to see any of it.

Q: Does the bar want to work with you?

A: I felt that the bar association line, as reflected by John Moye in a couple of debates where I faced him last year, was their approach was to caricature the provisions of Amendment 40 to raise implausible, irresponsible scare scenarios, and to demean my own integrity and credibility, that John Andrews is out to simply have paybacks because he didn’t like the action of the state Supreme Court on specific bills, and John Andrews is just a vindictive man who found some funding and wants to make trouble, wants to wreck our courts. You can’t hurt my feelings. I don’t take that personally. But the message that I got is that 30 years of honorable involvement in the public-policy process in Colorado and holding elected office and being my party’s nominee for governor and leading the state senate all count for naught. That if you cross the bench and the bar, and you try to break up their little closed game and let some fresh air blow through the windows and some light shine, in that they will do what they have to do to not only beat your proposal but crush you as an opponent. That’s where it stands between me and the bar association.

Q: To be fair, you did mention some decisions with which you were disappointed on your website, limitthejudges.com.

A: That’s true. But the line of attack, to shoot the messenger, which by the way — ad hominem — anybody who studies argumentation and persuasion, ad hominem is always a sign of someone’s sense of weakness of the merits of their argument. The ad hominem against John Andrews was because the (congressional) redistricting bill, which passed while I was Senate president was struck down by the state Supreme Court in response to Attorney General (Ken) Salazar’s suit, that John Andrews was just out for paybacks against the court in general and (Chief Justice) Mary Mullarkey in particular. This was said in disregard of the fact that I had run judicial term limits as part of an omnibus reform proposal, a proposed constitutional amendment, in April 1999, as a freshman state senator before redistricting after the 2000 census was ever heard of. So the supposed connecting of the dots to impute motives to me without any evidence falls by its own weight. It’s disproved by my 20 years of involvement with term limits, back to the late 80s, and by my having campaigned for term limits and having helped it pass into the Constitution for the executive branch when I was a nominee for governor in 1990, and (by) my own advocacy for judicial term limits as early as 1999.

The fact that I was mentioning certain cases as examples of judicial overreach isn’t the same as trying to pay anyone back. It’s simply an effort to provide specifics. I felt that as far as what specifics one provides, very often there was a Catch 22 tossed up by the opponents of our proposal. That is, if you didn’t provide specific cases you were accused of having a general grudge or ideological beef against the judicial branch for it’s own sake. If you did provide cases, they would say, ‘Well, you’ve only named me six cases.’ If you named 16, they would say, ‘Well, there are thousands of decisions that are made.’ Whether you specified or failed to specify, they always have a way of saying, ‘Well, you haven’t proved your case.’

Q: Take us back to the 1980s, and 1990s, when the term-limits movement was going on in Colorado with the executive branch and the legislative branch. Why was there no simultaneous effort with the Judicial Branch? Why did those come first?

A: Term limits originated out of the sense that the Congress under 30, 40 years of one-party control was entrenched and perpetuating its incumbency … and so you needed a constitutional stopper on the length of service in Congress. When that movement recognized how hard it would be to term limit the U.S. Congress, they turned their attention to a state-by-state effort. Colorado, Oklahoma and California were the first three states to enact it within a few months of each other in the summer and fall of 1990. At the time there was precedent to term limit the executive. We’ve done that to the president of the United States. There was a felt need to term limit the legislature, at the Congressional level, so that translated to an executive plus legislative package in the states, and here in Colorado. It was all one constitutional amendment that did it in Colorado. Conversely, the prestige and respect — the almost priestly veneration given to judges in our system, passed on from the respect accorded to the U.S. Supreme court into a sense, sometimes a proper but other times an exaggerated sense, impartiality and the lofty elevated disinterestedness of those men and women who wear the judicial robes, at any court level — at the time the term limit movement swept into Colorado, then state Sen. Terry Considine took the lead on it here in the state. In 1989, 1990, there wasn’t much thought given to including the judicial branch.

Q: When did the light go off for you? You said 1999 was when you started.

A: In ‘99, I had by then prior to coming into the Senate, I had felt a mounting sense of concern running a think tank, The Independence Institute, and later running the Texas Public Policy Foundation in San Antonio, working with Heritage Foundation in Washington, D.C., (and) producing public affairs television for John Malone alone at TCI (Tele-Communications Inc., now part of Comcast Corp.). That was what I was doing in the ‘90s. It gave me a window on the increasingly egregious overreach of courts, not just at the federal level but at the state courts as well, when I began working with reform advocates such as Doug Campbell and Doug Bruce on what we might do for Colorado courts. Doug Bruce had felt that not just he was betrayed but the will of the people was repeatedly betrayed by the unwillingness of the state Appeals Court and the state Supreme Court to read the plain language of the (tax-limiting) Taxpayers Bill of Rights (also known as TABOR) and uphold it. Unfailingly, when you litigate TABOR, it goes in favor of government and the spending lobby. That was part of Bruce’s concern. I shared that concern. I also had been a proponent of TABOR. As I began putting omnibus judicial reform together in ‘99, it had a lot of other features to it, it opened up the judicial discipline process to a little bit more public scrutiny. … It was a package of eight or 10 things we would be doing. It suddenly made a lot of sense for me.

It was brought as a resolution in the state Senate that would have required two-thirds of the Senate and two-thirds of the House. It did not clear the Senate Judiciary Committee. Even though there was a Republican majority, the chairman of the committee, Sen. Dottie Wham, was not a reforming spirit. She was more of a status quo ally. She wasn’t about to report out any sweeping judicial reform.

We did get the same identical constitutional proposal out of the Senate Judiciary Committee and in front of the full Senate in 2004. It was, however, obvious we didn’t have anything like two-thirds to pass it through the full Senate. I chose not to put it to a vote.

Q: So the key years were ‘99, ‘04 and ‘06, now we’re looking to ’08? ‘07 didn’t work either.

A: I believe that we broke the ice with Amendment 40. We achieved about 600,000 ‘yes’ votes. That’s well over half a million Coloradans who signaled their desire for a 10- year-and-out approach to our most powerful judges. I think the makings for a much-broader grassroots movement exists next year. We had to do paid signature gathering last year. I think it’s entirely possible we can do this with volunteer petitions in 2008. On the other hand, the donors to our campaign last year, I think, are concerned enough about this problem that they would support another campaign and help us find additional support for a campaign in 2008.

Q: What’s the percentage chance of your going with a ballot initiative in 2008?

A: 50-50.

Q: Is there any compromise? Is it all or nothing from your side? Has the bar ever come back and said, ‘10 years seems a little short. How about 15?’

A: No, I don’t believe that the bar association or the Colorado Judicial Institute or Rebecca Kourlis’ institute, any of those three centers of influence, would accept a term limit of any sort.

Q: They’ve told you that?

A: I just don’t think they would. I’d had quiet signals that there are judges all the way up to the Supreme Court itself that wouldn’t have minded had Amendment 40 passed. And I’ve had a federal judge bring to my attention, in a favorable way, the work of (law professors Roger) Cramton and (Paul) Carrington, who published an anthology urging an 18-year term limit for the U.S. Supreme Court. But the sincere conviction by most judges and most lawyers that … any slightest measure of additional accountability or restraint on the judiciary equals rank politicization equals gross interference with the majesty of the law and of the court, that perception seems to be so strong that it’s not going to be dislodged by negotiation or compromise of reasonable men and women coming to a meeting of the minds. You just have to break through that by the expressed will of the people, amending their constitution. We were well aware that 40 would have been litigated in the federal courts had it passed.

Q: On what basis?

A: That the term limit scheme applied unequally to different sitting judges, so they would have been denied equal protection of the law. And no matter what the people may do in 2008, it’s likely that opponents if it were to pass would find a way to litigate it in federal court.

I’m not crazy about the judge’s ruling that strikes down Amendment 41 (ethics in government act) frankly because my understanding of the American federal system inclines me to prefer that the people of the states get broad leeway to write their own constitutions. And I was not happy with the Romer v. Evans case that told the people of Colorado they could not make their own arrangements for special rights for homosexuals. I’m not happy with (Denver District Judge Christine) Habas’ decision that people can’t make their own arrangements to what sort of a gift a public employee an receive.

All that’s sort of a sideline, but the relevance of it is, I’m prepared if we pass something into the Constitution in 2008 or 2010 … they will find a way to take it into federal court and they may find a federal judge who agrees with them that the people of Colorado may not do this.

There’s another interesting line of speculation that if the Congress were ever really to take the bit in their teeth and try to strip certain jurisdiction away from the federal courts. We may now be so far gone in judicial imperialism you may have the federal courts telling the Congress it may not do that, even though the plain language of the Constitution says they may do it.

Q: A federal court challenge won’t dissuade you?

A: Not at all. Because if Amendment 40 had passed, and if they found a federal judge to rule the people of Colorado may not term limit their judges, it would only go to prove the point that the judiciary is out of control. And even had we failed ultimately to term limits our state courts, it would have been a huge step forward in the altered consciousness of what self-government really means for coloradans.

Q: You say on your website, ‘Term limits made me a better legislator.’ What do you mean by that?

A: I believe that the awareness one will not hold power for life, the awareness one will go back and serve under the laws you have made, causes one to be a better steward of power. My theme as a state senator was to remember day by day, I’m a trustee here. I don’t own this power. These budget dollars, these assets and agencies of state government are not owned by us collectively, the 100 legislators. We’re trustees, and the tendency of human nature, the intoxications of power, are such it’s very tough to remember that, it’s very seductive to begin to think that one is indispensable, you know more than others, you’re above them somehow, the building where you meet and the process where you decide and vote that this is somehow the center of what’s happening in Colorado. I love to challenge groups of visitors who come to meet in the Capitol building, the Old Supreme Court or wherever, welcome to your state Capitol, it is a very important seat of government, but it is not the center of what’s important about Colorado. …. Term limits also gave me a sense of the clock running as it would in a sports contest. Whatever I came here to achieve I needed to make every day count, I felt I was a better legislator in that way.