Is New Mexico’s judicial selection process flawed?

Judges are truly the guardians of the law. Not only do we, as a culture, depend upon judges to apply laws fairly and skillfully, but also free from political influence. Indeed, one of the guiding principles essential to the U.S. judiciary system is that judges should be able to do their jobs free from political pressure or manipulation.Sadly, however, this is not always possible, particularly in states in which political parties continue to wield significant authority when it comes to the judicial selection and election process, such as in New Mexico.

For instance, due to a procedural anomaly under New Mexico law, political parties may be able to prevent a duly appointed judge from defending his or her judgeship in a general election – essentially taking the decision out of the hands of the people. Given this fact, many individuals are now beginning question the effectiveness of the state’s current judicial selection process, with several even calling for change.

History of New Mexico’s judicial selection process

Many of the perceived issues with judicial selection in New Mexico are rooted in the laws that currently govern the process. Therefore, before one can fully comprehend these problems, it is important to first familiarize oneself with the specifics of these laws.

Prior to 1988, judges in New Mexico were primarily selected using partisan elections. Recognizing the potential drawbacks of such a system, many changes were proposed over the years. However, it wasn’t until 1988 that New Mexico voters approved a Constitutional amendment that established the current judicial selection process. Now, judicial vacancies are filled using a hybrid process that involves both gubernatorial appointments and general elections.

Specifically, under this process, once a judicial vacancy arises in New Mexico, a nominating commission consisting of judges, lawyers and non-lawyers will screen applicants and subsequently make judicial recommendations to the governor based upon the applicants’ qualifications and merits. Importantly, the governor can only appoint a judge from the list of qualified nominees.

After the judge is appointed, he or she will serve until the next general election, at which point, he or she must win a partisan election in order to serve for the next term. At the conclusion of this term, the judge will be able to run in a retention election for all subsequent terms, which is where voters simply vote yes or no to a particular judge’s continued service on a nonpartisan ballot.

Do political parties have too much influence over judicial selection?

Even though New Mexico’s judge selection process goes to great lengths to recognize both the qualifications and merits of judicial applicants – while at the same time giving a voice to the people through elections – there is one specific statute that political parties use to manipulate certain aspects of this constitutionally protected process.

This particular provision – otherwise known as Section 1-8-8 of the New Mexico Statutes – states, “If after a primary election a vacancy occurs […] for any public office to be filled in the general election, […] the vacancy on the general election ballot may be filled by […] the central committee of the state political party.” Interestingly, political parties have interpreted this provision as giving them the authority to name anyone they choose to be their judicial candidate for a general election so long as the vacancy occurs following a primary election.

Thus, even if a judge is appointed to the bench through the merit-based nomination process, but the vacancy for the appointment occurs after the primary election, New Mexico party leaders believe they have no obligation to put this duly appointed judge on the general election ballot.

This means that a sitting judge may not even be given the opportunity to run in the general election for the position they already hold. Ultimately, the decision of who gets to be the nominee in these circumstances rests solely with the central committee of the political party.

Ill-timed judicial retirements contributing to problem

Sadly, this issue arises all too often in New Mexico. In fact, this year alone several incumbent judges waited until the filing deadline for the primary election had passed to announce their retirement – meaning any judges subsequently appointed to fill their vacancies would not necessarily be guaranteed the ability to run at election to keep their judgeships.

One of the greatest travesties associated with this particular practice is that it negates the hard work carried out by the judicial nomination commissions. Indeed, these commissions work tirelessly to ensure judicial applicants possess the skills and characteristics needed to be effective judges. Allowing political parties to come in and nominate anyone they choose – including individuals who may not have even applied for the judicial appointment in the first place – makes the entire merit-based selection process virtually meaningless.

Even worse, voters are being robbed of their opportunity to make their opinions regarding a judicial appointee known, through either a primary or general election.

Fighting for a chance to run for judicial election in New Mexico

This particular issue has incited significant discontent among many judicial appointees, with some even electing to fight back after they were told by their political parties that they would not be nominated to run for the positions they already held.

In fact, several appointees claim the policy of permitting political parties to nominate judicial candidates different from those already appointed through the merit-based selection process is in direct conflict with the New Mexico Constitution, and thus should not be permitted.

Various options have been proposed to remedy the problem, including simply replacing the names of party nominees on the general ballot with the names of the merit-based appointees, or, at the very least, listing both names. Alternatively, a primary election could be conducted to determine which individual should ultimately run in the general election, or, if it is too late for a primary election, allow the appointed judge to continue serving until the next primary election.

Unfortunately, however, until the method for selecting judges is drastically changed in New Mexico, political parties will continue to do whatever is in their power to manipulate the process – even if this means nominees are selected for political reasons as opposed to merit.