Partisan politics are alive and well in New Mexico state judicial selection, given the recent allegations of the tawdry selection process for a district judge in Las Cruces.
It is time for New Mexico to revisit its judicial selection process to ensure that judges are accountable to the public they serve by re-adoption of contested elections that served our state well for 78 years.
Traditionally, a New Mexico judge would run in a partisan election as either a Republican or Democrat. This was changed by constitutional amendment in November 1988.
Vacancies are filled by a judicial nominating committee at the appellate, district and metro court levels. The dean of the University of New Mexico Law School chairs all the committees. Each committee has equal Democratic and Republican representation.
The nominating committee has 30 days from the time the vacancy occurs to submit a name to the governor.
The governor has the right to make one additional request for additional nominees. If the governor fails to make an appointment within 30 days of the final nomination, the chief justice of the Supreme Court makes the appointment from the list submitted.
The appointee holds office until the next general election. Every judge must face one partisan election before being eligible for a nonpartisan retention election.
New Mexico judicial selection varies substantially from other states. Only three of the 14 committee members are required to be nonlawyers. This is the smallest percentage of any state having nominating commissions. The number of judges on the committees are the greatest of any state. Finally, the governor is allowed to request additional names of candidates.
Despite promises of bipartisanship, the vast majority of Gov. Bill Richardson’s judicial appointments were Democrats. Judges receive de facto lifetime tenure because few judges are ever rejected in retention elections.
The Judicial Evaluation Commission was created by the Supreme Court in 1997 to improve the performance of New Mexico’s judges and provide useful credible information to New Mexico voters on all judges’ standing for retention election. The commission is to make its position known about whether a judge should be retained 45 days before the election.
However, this commission has recommended only one district judge not be retained and has never recommended nonretention of an appellate judge.
Running as a Democrat or Republican gives voters important information that they are not otherwise privy to in a nonpartisan election. In addition, studies have shown that judges have a very different philosophy as to criminal and civil justice based on their party affiliation.
Voters should be allowed to judge these jurists on their party affiliation because it affects the way a judge rules on the bench.
Those who oppose partisan election of judges claim that people cannot be burdened with the task of voting for so many judicial candidates. However, voters can and do make decisions on a plethora of constitutional amendments, bond issues and candidates in any given election. Those who oppose partisan elections claim that the process enslaves judges to seek money from those who appear before them. There are several remedies to this issue.
Public financing of judicial elections could be an option. Another option is to prohibit the judicial candidate from being made aware of who donated to their election. In addition, judges are already required to excuse themselves from cases where their independence might reasonably be questioned.
The system that New Mexico has put in place since 1988 has failed in its promise to ensure any real accountability. The so-called reform has placed judicial selection in the hands of a chosen few nonelected individuals, instead of in the hands of the public.
New Mexico’s experiment with judicial reform has failed and should be ended in favor of the traditional constitutional system of elected judges that served our state so well for some 78 years.
