FOR THE RECORD: The spelling of Arthur Pepin’s name has been corrected in this column. The column also incorrectly reported the number of judges on the state Appeals Court. There are 10.
Is the New Mexico judiciary influenced in its decisions by the interests of campaign contributors to judges?
“It’s kind of hard to imagine it’s not,” says Roderick T. Kennedy, chief judge of the state Appeals Court.
The influence could be as subtle as a judge hesitating – without even knowing it – when faced with making a decision against the interest of a political supporter.
“You don’t want a judge thinking twice. Ever,” Kennedy says.
Still, Kennedy says, in 30 years as a lawyer, “I don’t think I’ve ever seen a judge that was bought off.”
Last week, I told you about a new nationwide study that found campaign contributions by business groups influence the decisions of state supreme courts. The study said other groups making large donations also could exert influence.
In New Mexico, lawyers and lobbyists – most notably trial lawyers – are the biggest donors to hopefuls for the Appeals and Supreme courts, with most of that money going to Democrats, who nearly always win elections to the two courts.
New Mexico has taken steps to combat the influence political contributions can have – or can appear to have – on the courts.
Since 2008, the state has had a system to provide public financing to candidates in contested elections for the Appeals and Supreme courts.
If a judicial candidate isn’t eligible for public financing or chooses not to accept it, he or she is required by the Code of Judicial Conduct to set up a campaign committee to solicit private political donations.
Also, a judicial candidate is barred by the code of conduct from seeking to discover who has contributed to his or her campaign or an opponent’s campaign.
But both the system of public financing and the Code of Judicial Conduct are limited in their effectiveness.
Since public financing became available, there have been nine candidates in contested elections for the Appeals and Supreme courts, and only three received public financing. All lost.
While the Code of Judicial Conduct attempts to build a barrier between judicial candidates and campaign contributors, a candidate would have to be living in a cave not to know who finances judicial campaigns in New Mexico.
I think we can safely assume that, in general, trial lawyers give most of their money to Democrats because they believe Democrats are more supportive of plaintiffs’ positions.
Business interests in New Mexico, which tend to favor Republicans, contribute far less than trial lawyers.
Since public financing of judicial campaigns began, all four candidates elected to the Appeals and Supreme courts in contested races were privately funded largely by lawyers and lobbyists, and all were Democrats.
Today, there are no Republicans on the state Supreme Court and only three Republicans on the nine-member Appeals Court, despite GOP candidates in recent years being well funded, in part due to public financing. Of the three GOP members on the Appeals Court, only two – Kennedy and Jonathan Sutin – have won an election to the court. The third, Miles Hanisee, is an appointee of GOP Gov. Susana Martinez who must win a partisan election next year to remain on the court.
The reason or reasons for Democratic dominance of the Appeals and Supreme courts aren’t clear. One theory is that judicial races attract little public attention. So voters fall back on their party affiliations in casting votes, and registered Democrats outnumber Republicans. Another theory is that voters in New Mexico simply believe Democratic judges better represent their interests.
The big question remains: Do campaign contributions by trial lawyers to Democrats running for the Appeals and Supreme courts make those candidates more likely to favor the positions of trial lawyers once elected?
Arthur Pepin, director of the Administrative Office of the Courts, says there is no evidence of that.
“I think their (judges’) inclination is to know as little as possible” about their campaign contributors, Pepin says. But, he adds, “As a practical manner, they have to raise money.”
Judges on the Appeals Court and justices on the Supreme Court are elected in partisan elections, then face retention elections to keep their seats. In a retention election, voters vote “yes” or “no” on whether a judge should be retained for another term.
There was some good news for New Mexico in the new study on campaign contributions and judges’ decisions.
While the new study found judges were influenced by political donations for contested elections, it found no significant relationship when money was given for retention elections.
“The retention system we have here is a step away from that money having influence,” Pepin says.
The governor can fill midterm vacancies on the Appeals and Supreme courts with appointees recommended by bipartisan nominating commissions, but an appointee must win a partisan election to keep the job, then retention elections for additional terms.
Kennedy says public financing of campaigns for the Appeals and Supreme courts helps in separating judges from politics but says the state should go a step further by doing away with partisan elections of judges.
“You shouldn’t have judges who are regular politicians,” he says.
Under his plan, the governor would appoint all judges based on recommendations from bipartisan nominating commissions. The judges then would face only retention elections.
Kennedy acknowledges the change could lead to more Republicans on the bench but says the judiciary would benefit from more ideological diversity.
Martinez, according to a spokesman, favors keeping the contested elections for judges but making them nonpartisan.
The proposals of Kennedy and Martinez would require voter-approved constitutional changes, which would first have to be approved by the Democratic-controlled Legislature. That seems unlikely; trial lawyers also are major donors to lawmakers.
Last week, I reported that Democrat Barbara Vigil, elected last year to the Supreme Court, chose to finance her campaign with private contributions.
However, Vigil and her opponent, Republican Paul Kennedy, weren’t eligible for public financing.
That’s because the vacancy on the Supreme Court occurred after the primary election and after the period for judicial candidates to qualify for public financing.
Vigil was nominated to run in the general election by the Democratic State Central Committee. Kennedy, who had been appointed by Martinez to fill the vacancy on the court until the election, was nominated by the Republican State Central Committee.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at email@example.com or 505-992-6280 in Santa Fe. Go to ABQjournal.com/letters/new to submit a letter to the editor.