On November 20, 2020, Judge Maria E. Berkenkotter was appointed as the next Colorado Supreme Court Justice to fill the vacancy from Chief Justice Nathan B. Coats retirement in January 2021. Justice Berkenkotter was kind enough to speak with me about her appointment, a summary of which is below.
Justice Berkenkotter found it somewhat serendipitous that she was appointed to fill the seat vacated by Chief Justice Coats. During law school, Justice Berkenkotter worked as an intern in the appellate division of the Denver District Attorney’s office, which was supervised by the then-Chief Appellate Deputy District Attorney Coats. When she was appointed in as a judge for the Boulder District Court in 2006, it was none other than then-Justice Coats who swore her in. Justice Berkenkotter observed that it feels a bit like coming full circle for her to now to be appointed on the Court for his vacancy, while also emphasizing how she would never say that she is filling Chief Justice Coat’s acclaimed shoes.
Justice Berkenkotter reflected that she had the idea that she wanted to be a Supreme Court Justice as a young child, although she conceded that she was probably envisioning the United States Supreme Court at the time. Justice Berkenkotter was not sure where she got the idea from, noting that her family did not have a lot of resources when she was growing up, with her step-dad working as a night janitor at a middle school just to support the family while her mom was in school. But wanting to be a Supreme Court Justice was the spark of an idea that stayed with her.
At the outset of her legal career, however, Justice Berkenkotter’s priorities were much more pragmatic. She was focused the practicalities of getting a job and paying off her student loans, rather than having any especially lofty goals about where her career might take her. Justice Berkenkotter also commented that, while she had chosen to attend the University of Denver for law school specifically because she thought she wanted to study international law, she ended up not even taking a class on the subject and pursued a different career path altogether.
Justice Berkenkotter was previously nominated for—but not appointed to—the Colorado Supreme Court in 2018. While disappointed about the outcome of that nomination, Justice Berkenkotter found that some of the sting of the rejection was offset because of her utmost respect and friendship with her colleague, Justice Carlos A. Samour, who was the appointed nominee. She and Justice Samour were district court chief judges at the same time, and that personal connection and collegial respect softened the blow of not being nominated herself.
But it was still a disappointing outcome. Justice Berkenkotter emphasized that she had to give careful thought to whether she wanted to apply to be a Colorado Supreme Court Justice again after not being selected in 2018. Nevertheless, she knew she didn’t have any chance of being appointed if she didn’t apply. To wit, she had to play the game if she wanted the chance to win.
Going through the 2018 nomination process, however, also gave her a very unique perspective on the different procedures implemented for a pandemic-ridden 2020. For example, instead of meeting in person with the judicial nominating committee in the intimidating Supreme Court conference room, she had her nominating committee interview over Webex, the Colorado judicial remote video platform of choice. Justice Berkenkotter noted that the limited human connection was the hardest part about holding such an interview virtually, along with the expected challenges of being in any video meeting with a large number of people. Unsurprisingly, she found that simple things like having good eye contact with the person who asked the question to be especially challenging over a computer screen.
Justice Berkenkotter explained that her 2018 governor interview was in the governor’s office at the State Capitol. Her 2020 interview with Governor Polis and his team was still in person—albeit outside, socially distanced, and with everyone in masks. She noted that, while only interacting with people online poses challenges to forming personal connections, masks are also problematic for the softer people skills like reading facial expressions. For her interview with Governor Polis, Justice Berkenkotter chose to go with her self-described “creepy” clear plastic mask option, rather than something like a matching pantsuit-mask combo, so others could at least see a bit more of her facial expressions during the gubernatorial interview.
As for integrating onto the Court during a pandemic, Justice Berkenkotter has spoken with all of the justices and found everyone to be extremely welcoming and encouraging. The other Justices are providing her with plenty of advice and guidance for how to prepare. Justice Berkenkotter noted that oral arguments are still being held remotely over Webex, but the justices are able to work in person in their chambers at the Ralph L. Carr Colorado Judicial Center. She added, however, that the atmosphere at the Court is still very different because of the pandemic, with law clerks and the majority of the court staff working remotely. Additionally, there is less opportunity to casually stop by another justice’s chambers and chat for a bit, as social distancing and mask wearing are key components for the justices being at the building at all.
Justice Berkenkotter opined that every judicial appointment is like drinking out of a fire hose to start, remarking that it is extremely intense no matter what your background is because of the demands of the job and the importance of the work you do. In preparation, she has been gathering all the public information that she can about the current docket and reading up on the case briefs so that she can hit the ground running. Justice Berkenkotter was officially sworn in on Monday, January 4, 2021, attended her first conference with the other justices three days later, and participated in virtual oral arguments the following week.
For swearing in, it was a very private affair with only Justice Berkenkotter and Chief Justice Boatright, socially distanced and masked, in the Supreme Court courtroom. Justice Berkenkotter hopes that someday she will be able to have some sort of ceremony or celebration with her colleagues, family, and friends. But for now, the gravity of the pandemic puts such plans on hold.
When asked about her goals or desired impact for her appointment to the Colorado Supreme Court, Justice Berkenkotter emphasized that she had so much respect for the current justices of our Court and the Court as an institution. Her goals to start are modest, as she is mindful of what an important job this is. Above all else, she wants to make sure she is as prepared as possible and ready to do the work of the Court. Over time, she hopes to draw upon her operational experience from her time on the bench at the trial court. The pandemic has been devastating for the Colorado district courts with the suspension of the majority of jury trials since March, and the tsunami of backlog that awaits once jury trials can resume. She is extremely mindful that justice delayed can become justice denied, but also commends the creative and innovative efforts that the trial courts have implemented to adapt to the pandemic and to keep cases running through the pipeline and the doors to justice open as best they can.
Justice Berkenkotter counseled students and young lawyers that, if you’re not entirely sure where you’re going or how to get there, you’re part of a really big club of people feeling the same way. You are not alone, and you should realize that there isn’t a particular “right course” to take on your own legal journey. Be open to what comes because you’re going to learn from it, and critically, prioritize making the relationships and personal connections (even if they have to be done virtually or through a creepy mask).
In conclusion, Justice Berkenkotter encouraged everyone to hold on to their spark, their little flame of hope, and to keep slowly working towards that goal. Rejection and failure will happen along the way, but you cannot win if you don’t play the game.
Marty Whalen Brown is a Staff Adjudicator at the Office of Appeals in the Colorado Department of Human Services. She holds a J.D. from the University of Colorado Law School and clerked at the Office of the Presiding Disciplinary Judge under the Colorado Supreme Court after graduating.