Voting for judges is voting in the dark

When we’re voting for judges, let’s admit it, many of us don’t know what we’re doing. We don’t know enough about the candidates or how to evaluate them.

We may vote on the basis of party affiliation or rely on the endorsement of our local newspaper or some other organization. Some of us skip those lines on the ballot entirely. This year, the total number of votes cast for four appellate judge positions averaged about 20,000 less than for the governor’s race.

According to the Secretary of State’s final tallies, out of 11 District Court judgeships that could have been competitive, nine were uncontested.

What judges do is not as public as what other elected officials do. Judges preside over individual cases, applying existing law to specific facts and details. Their activities, while mostly open to the public, are rarely attended by the public. To prevent appearance of bias, they are not supposed to talk about their political viewpoints when campaigning. Most of us are, to some extent, shooting in the dark when we vote for them.

So the amendment to the state constitution recently proposed by Supreme Court Chief Justice Judith Nakamura is not unreasonable, at least as a beginning point for discussion. She proposes that newly appointed judges be given more than a year before they have to stand for election. She has not offered details about how that would be done.

When a judge retires, a new judge is appointed by the governor, based on a list of applicants presented by a nonpartisan Judicial Nominating Commission. The new judge serves until the next general election, then has to run against possible primary and general election competitors. If the old judge retires with a year or less left before the next election, the newly appointed judge has a very short tenure.

A lawyer who becomes a judge would have to step away completely from his or her law practice, and might hesitate to do so if it’s possible to lose the election after a year or less. That limits the pool of potential judge nominees and perhaps affects the quality of judges.

New Mexico’s hybrid system of picking judges is a continuing source of confusion to some voters. After one partisan election, judges run for “retention,” a yes-or-no vote of confidence. The Judicial Performance Evaluation Commission publishes reviews of judges running for retention, but not for the partisan elections.

If you think it might be better to have judges simply appointed by the governor, allow me to disagree. I’ve written elsewhere (see that independently elected state officials serve as a safeguard of democracy because they cannot be arbitrarily fired. Independently elected judges, even in a system as cumbersome as ours, are a similar safeguard.  Just remember the spectacle of the recent Supreme Court appointment of Justice Kavanaugh to see how ugly the appointment process can be, and the taint of partisanship that may be left behind.

Nakamura’s proposal may be in part a response to the defeat of several Republican appellate judges appointed by Gov. Susana Martinez, after a particularly offensive TV commercial, sponsored by a lawyer-funded political action committee, depicted them as Martinez puppets. The proposal itself is nonpartisan.

The proposal will likely be debated during the next legislative session, so here’s a thought to add to it.

Local jurisdictions are in the process of fulfilling a previous state constitutional amendment to create consolidated election days for nonpartisan elections, such as city councils and school boards.

Suppose we could elect judges with no party designation, like city councillors, and have them all run for office in those nonpartisan years. I realize this is administratively complicated. It could take several years and several election cycles to implement, but it might result in an even more independent judiciary.

Triple Spaced Again, © New Mexico News Services 2018

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One Response to Voting for judges is voting in the dark

  1. Robert McNeill says:

    Very good points Merilee, and we are on the same page to a great extent. Great talking with you again.

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