Partisanship Has No Place in Judiciary

Article originally appeared in Albuquerque Journal on 05/18/11

Many good judges have been selected by the New Mexico Judicial Selection process, but the process should not be credited for those successes.

A Las Cruces Judge who held a good reputation in the legal community has been indicted for allegedly advising a judicial candidate that a contribution would be needed to be appointed. Some say that is an isolated incident; and some say it is the way it is done; and maybe there was just too much open discussion. It is too early to judge the Judge. However, it cannot be too early to judge the system of selecting and appointing judges in New Mexico and it cannot be too early for the Legislature to send a constitutional amendment to the voters to take judges out of a partisan election process that necessarily requires judges to play partisan politics.

Over the years, many judges or persons related to them have made contributions to governors, and the connection between the contributions and appointments is seldom discussed, nor could it be proven. Some make contributions and do not get appointed. Is the questionable appearance of this process eliminated because there is no proof that the contributions influence appointments? No. Many judicial and attorney ethics rulings are based on “appearances” and not proof of absolute of wrongdoing.

Currently judicial candidates are recommended by commissions appointed to fill one judicial vacancy. These commissions are appointed by a combination of politicians, judges, and the State Bar. So far, not so bad. Then, the partisan politics start. The Governor appoints from those recommended by the commission. The appointed judge then must run in a general partisan election to remain in office. The judicial candidate’s campaign is usually paid for by contributions from lawyers and others who deal with the judicial system. Why do they contribute to judicial elections? The possible answers are not pretty. In the end, many judges have made contributions to various governors, and many people make contributions to judges’ campaigns. Can such a system give citizens confidence that judges so elected are loyal to their oath? Or does it “appear” that there is loyalty to their party, and their contributors, and those who appointed them?

Why has our legislature kept judicial selection as a Republican v Democrat process? It is likely because they view judges as additional election victories that strengthen a party. At what expense? At the expense of a judiciary that is shrouded in partisan politics and fundraising. The Executive Branch and Legislative Branch are expected to be partisan, and to be accountable to their constituency. It should not be so with judges. Accountability of judges can be accomplished by simple non-partisan retention elections that requires no fundraising.

Some will say the Las Cruces judicial crisis is isolated and not representative. Yet the current system creates the atmosphere for such problems. The judiciary should not be subjected to this system that generates suspicion of buying influence. We need merit selection by non-partisan commissions, with the selected judges held accountable in non-partisan retention elections. We must take the judiciary out of a system that is inconsistent with the expectation that judges be loyal to fairness and the law. It is time to get cash out of the courts, whether the cash is legally allowed or not!

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