I’m not going to bury the lede: the CWBA has placed a temporary hold on its judicial due diligence and endorsement process. This hold is in effect now and we expect to provide an update by the end of the summer.
We have taken this step so we have the time we need to take into consideration feedback we’ve received from the Governor’s Office, to ensure that our due diligence memos and endorsement decisions are making a meaningful impact, to evaluate how we can best use our human resources when engaging in the judicial appointment process, and to reassess how we can most effectively serve the ultimate goal of a well-qualified, respectful, and diverse judiciary.
I understand that this development may be incredibly disappointing to some of you. I know the thoroughness of our process has meant a lot to many people in the community. As a former Judicial Co-Chair, the process has meant a lot to me, and I did not make this decision lightly. But it is also crucially important to me to be respectful of CWBA Board Members’ time and to ensure their energy and talents are being put to good use. Thus, creating the time and space to step back and reflect is the only choice that feels right to me in this moment.
I would like to take the opportunity to explain how we got here, why we made this decision, and what our next steps are.
Background
For more than 15 years, CWBA’s Judicial Committee has conducted due diligence for every state district court, Court of Appeals, and Supreme Court vacancy.[1] This process consists of calling all individuals listed in Question 15 of the shortlisted candidates' applications and drafting a memorandum. Candidates would seek the CWBA’s endorsement by writing a letter stating their qualifications and commitment to the CWBA’s mission. The CWBA’s Executive Committee (a 7-person group) made its endorsement decisions based on the due diligence memorandum, the judicial applications, and the endorsement request letters. CWBA sent both the due diligence memo and the endorsement decision to the Governor’s Office.
Why we are considering changes to the current due diligence and endorsement process
CWBA’s Judicial Committee co-chairs and Executive Committee members met with staff from the Governor’s Office on two occasions in 2022 to discuss the CWBA's due diligence process and the memos that are sent to the Governor's Office. In those meetings, members of the Governor’s staff reported that the CWBA’s process--which parallels the due diligence conducted by the Governor's Office—causes confusion and makes it more difficult for the Governor's Office to get feedback directly. In particular, there were concerns that when individuals speak with the CWBA before the Governor's Office, they are less likely to respond to inquiries from the Governor's Office because they either do not realize the difference or do not have time to have multiple phone calls about the same candidate. When both the CWBA and Governor's Office do speak to the same individual, the Governor's Office doesn't seem to see value in the CWBA's memo providing duplicative information.
We are taking this feedback seriously in light of the significant time commitment that the CWBA's current process entails. In the last two years, there have been a high volume of vacancies and increasingly short timeframes to provide comments to the Governor's Office. We've also found it increasingly difficult to find enough volunteers to make phone calls. The current process also puts a burden on the Executive Committee’s ability to effectively lead the organization. The Executive Committee is the CWBA’s primary governing body responsible for big picture strategy decisions as well as all issues that require a quick turn-around. In the last year, 69% of the Executive Committee’s time meeting was spent on judicial endorsement requests and 31% on all other matters.
The Time Commitment
For each vacancy, assuming a shortlist with three candidates, it takes the CWBA around 25 to 33 (wo)man hours to complete the due diligence and endorsement process, usually in a matter of days.
The CWBA conducted 21 rounds of due diligence this year, for an estimated total of 630 hours spent on due diligence and endorsement decisions.
Why the pause now?
The Judicial Committee co-chairs and Executive Committee have been in discussions about all of this for the past year. We originally decided that we should keep doing the current process until we determined what changes we want to make. But as it turns out, it has been difficult to rebuild the airplane midflight. Given the time commitment required by our current process, these discussions have only just begun to (continuing the tortured metaphor) get off the ground.
Furthermore, the Governor’s Office and judicial nominating commissions are on their own schedules and do not always align particularly conveniently with the CWBA’s other commitments. The CWBA’s Annual Convention takes place May 19-21, and May 20th marks the official leadership transition to a new Board, including new Judicial Co-Chairs and a new Executive Committee. Late May and June is a very busy time behind the scenes as the new Board plans for the year ahead. And the next few shortlists will be announced May 15, May 19, May 30, and June 5. Pushing through and conducting due diligence as usual will take time away from our process discussions as well as take time away from our general leadership transition.
Next steps
In addition to having internal discussions, we also want to be sure to involve important stakeholders. Judicial Co-Chairs hosted a listening session with Judicial Officers who are CWBA members as well as Past Presidents last month. We also want to schedule another meeting with the Governor’s Office. We are in discussions with the President’s Diversity Council and the Diversity Bars about how to best advance our combined efforts to advocate for a diverse Colorado judiciary. The Judicial Co-Chairs together with the Executive Committee will consider this feedback and propose a recommendation for how we can most effectively engage in the judicial nomination process. And we want to bring you all along with us by posting updates here.
We want to hear your feedback too! Please feel free to drop a comment or email me at emma.garrison.cwba@gmail.com.
[1] The CWBA recently adopted a process for endorsing federal judicial candidates. Because federal vacancies occur much less frequently and our process is less time-intensive than it is for state vacancies, it will not be affected by this hiatus and we will consider endorsement requests for federal judicial officers during this time.
Emma Garrison is an Assistant Attorney General in the Tax Unit of the Colorado Department of Law. Emma joined the CWBA in 2014, and has previously served as Co-Chair of the Convention, Membership, and Judicial Committees, and as the CWBA Secretary. She has also held many leadership positions in the Colorado legal community over the years, including Chair of the Colorado Bar Association Young Lawyers Division and Senior Vice-President of the Colorado Bar Association. Emma is the current host of On What Grounds?, CWBA’s virtual leadership café.