New Mexico flunked yet another national report card in 2015, this one on the risk of government corruption. But one shiny, bright little good thing stood out in the rating by the Center for Public Integrity: our judicial branch.
I was the nerdy journalist who collected all our state’s data for the project. Trial lawyers, law professors, other reporters, members of various commissions and published reports all told me the same thing: New Mexico does a pretty good job with the judges in its high courts.
Look at the picture of our state Supreme Court justices on the next page. What an amazing picture of diversity! For the first time in history, New Mexico has a female majority on the court. More than half its members are women and more than half are Hispanic. (It’s notable especially because other courts in the country are notable for not reflecting the makeup of their communities.)
New Mexico has a unique way of filling the seats on its top courts, part of a larger system of reform structures put in place over a decades-long effort to improve public confidence in the judicial branch.
Largely it’s worked (ranked third in the nation), but in the years since these various commissions and systems were created, the ground has shifted.
Years of gridlock in Washington encouraged people looking to affect change to seek opportunities elsewhere. Since 2000 (and more so since the Citizens United decision in 2010), spending on judicial races has increased markedly—especially from right-leaning groups.
So far, New Mexico’s courts have not become the focus of this kind of political warfare or spending, but they could be. Weak campaign finance laws and voter apathy have left the doors wide open.
“When the federal government is at a standstill, suddenly state politics is where everything happens,” says UNM political science professor Lonna Atkeson.
With little risk and plenty of potential for reward, interest groups began to attack the ivory towers where impartial, independent jurists were supposed to be deciding important issues without regard to current events or politics.
That’s probably not how it ever really worked, but it’s certainly not how some people want it to work now. Creating and running a political ad attacking a judge for particular decisions is cheaper and more effective than campaign contributions or lobbying.
And elected state lawmakers and governors have joined the effort to target state courts in the ways they can, such as by threatening their funding.
Take Kansas, for example. Kansas is one of an increasing number of states in which one party (in this case, Republican) controls the governor’s office and both houses of the legislature. But the Kansas Supreme Court still has a majority of justices who were chosen by former Democratic governor Kathleen Sebelius. That sets the stage for what The New Yorker described as “The Political War Against the Kansas Supreme Court,” as waged by the trifecta of Republican Gov. Sam Brownback and the Republican-led House and Senate.
So when Kansas’ highest court issued a ruling its governor and legislature didn’t like (about public school financing), the other two branches took a threatening swipe at the court by passing a law that took away its authority over lower courts.
The Kansas Supreme Court called their bluff and ruled that the law stripping the court’s authority was unconstitutional. In response, the legislature backed down.
New Mexico hasn’t had a political trifecta since the administration of former Democratic Gov. Bill Richardson, which ended with the election of Susana Martinez in 2010. Republicans know well its effects. But liberals in the state Senate and elsewhere shouldn’t be complacent. The 2014 Republican sweep of the state House showed everyone how quickly decades of stasis can change.
War between the branches of state government is erupting elsewhere, too. In 2014, the lieutenant governor of Tennessee called on conservatives nationwide to help unseat three judges, appointed by a previous Democratic governor, whom they saw as too liberal on the death penalty and not friendly enough to business. What would normally have been an uneventful retention election turned into a media war that saw more than $1 million spent on the races. In the end, voters decided to let all three keep their seats, but the election marked a sea change.
In 2015, a retention election for three Pennsylvania Supreme Court justices set a record for spending in judicial elections at more than $15 million—$3.5 million of which came from independent groups. That year, judicial elections in 19 states generated nearly $35 million in spending.
New Mexico is “more insulated than what you’ve seen in other states where, in response to some controversial decisions, political actors have tried to replace judges with people who would issue decisions more in their favor,” says Heather Ferguson, legislative director for Common Cause, who has recently been researching judicial reform.
“It became a new mantra of these groups to say, ‘Hey! These judicial races are cheap!’ So they’ve started spending money on courts because courts decide cases related to things like labor and the environment that have a direct impact on their business,” Ferguson says.
"They’ve started spending money on courts because courts decide cases related to things like labor and the environment that have a direct impact on their business."
The reason New Mexico scored well on that State Integrity Report is because of policies such as merit-based selection, retention elections after appointment, performance evaluations, ethics reporting and public financing. Taken together, these five things add up to a strong system of creating and maintaining a judiciary that is an independent check on the other two branches, just as this country’s founders, paranoid as they were, thought was necessary to prevent the tyranny of any one branch. But the system is not infallible.
Public Financing is Successful
New Mexico’s public financing system for judicial races was intended to shore up the independence of state judges and remove any question that money paid for influence.
“The public wants to know that their Supreme Court justices are not beholden to a corporation in any way, so public financing can help rebuild public trust in our judicial system,” says Ferguson.
In 2014 it saw its first big success when Miles Hanissee became the first candidate for the Court of Appeals to win a race using public financing. The Public Election Fund, which is fed by things like people’s abandoned bank accounts, gave Hanisee and his opponent around $30,000 and $45,000, respectively (based on the number of registered voters in their parties). They each got about $200,000 more for the general election. And they spent it all.
Over the past decade, races for the state’s top courts have hovered around a lid of about $250,000. This year two candidates are tapping into the public financing system to run campaigns before the upcoming November general election. They’ve reported getting a little more than $200,000 each.
Much of that money will go to advertising. One of the candidates has already reserved more than $100,000 worth of television ad time for the fall; he’s planning to air more than 400 ads on five stations in the three weeks before the election.
Money Still Influences Elections
The fact that public financing has put a pause on some spending is a good thing, say campaign finance reform advocates. But there’s a giant hole in that fence: money spent by outside groups who want to influence the election but don’t give the money to the candidates or coordinate with them.
New Mexico’s campaign finance laws haven’t been updated to require that those groups disclose how they’re spending the money—or to make it clear exactly what “coordinating” means. So the millions of dollars spent by outside groups on that Pennsylvania Supreme Court race? That could happen here, and we wouldn’t even know who spent the money.
“Outside spending is a game changer at all levels, and we’ve been lucky not to have this dark money pour into our judicial races yet,” says state Sen. Peter Wirth, D-Santa Fe. “It’s just a matter of time.”
Wirth, who has long championed campaign finance reform in the Legislature, says it’s a good thing that public financing can limit the amount of money spent on judicial races. However, he warns that limiting spending by the candidates can invite spending by outside groups.
The pattern in New Mexico is that more and more money is being spent on elections.
“It’s just a matter of time before we see a $1 million-plus judicial race,” Wirth says. “We’re now seeing that in the legislative races and five, 10 years ago you never would have seen that.”
Merit-based Selection Still Involves Politics
Judicial reform advocates have long held that the best possible way to select judges is the Missouri Plan, named for the first state to use a system in which a nominating commission drafts a binding list of names from which the governor may choose, and then that appointee must face periodic retention elections.
The idea is that a diverse, bipartisan group is most likely to choose a candidate based simply on how well the group thinks the candidate can do the job. It is intended to prevent governors from giving away prominent judgeships to friends and cronies.
Yet, several loopholes keep money and politics playing a significant role in the way judges are chosen.
For one thing, New Mexico’s twist on the Missouri Plan is that state-level judges must compete in a partisan election after they’re appointed. And Democratic Supreme Court candidates have won every single one of those partisan elections for the past 35 years. Republicans have been appointed to the court, but none survived a partisan election since 1980.
Also, justices retire when they want to retire and that’s not necessarily when it’s most convenient to start the process for replacing them.
State Supreme Court Justice Patricio Serna announced in June 2012 that he would leave in August of that year, and it seemed that Republican Gov. Susana Martinez would have her first opportunity to appoint someone to the court. Except that Serna’s retirement came too late in the year for candidates to have participated in the June primary. According to our system, the political parties chose candidates in September for the November general election ballot.
That meant that voters in 2012 had very little time to hear about the candidates before being asked to choose one.
Republican Paul Kennedy lost the race that year to Democrat Barbara Vigil, and if the pattern holds true, Republican Supreme Court Justice Judith Nakamura, appointed last fall and sworn in mid-December, will likely lose to her Democratic opponent, Court of Appeals Judge Michael Vigil.
In these partisan elections, especially those that give the candidates little time, money and connections can make a huge difference.
“One of the challenges of public financing is that when judges retire at the last minute, the person who’s appointed to take their place is immediately kicked into an election cycle and typically they don’t have enough time to qualify for public financing,” Ferguson says.
So that part of the system favors candidates with the best political connections, the best ability to raise a lot of money fast and the most support from outside groups with a lot of money to spend on their behalf.
And those partisan elections often include candidates that meet the state’s minimum requirements but haven’t been through the Judicial Nominating Commission’s vetting process.
“Once you [win] that election you’re pretty much solid,” says state Sen. Joseph Cervantes, D-Doña Ana, an attorney who has tried many cases in state courts.
Cervantes tried but failed to persuade the Legislature to let appointed judges serve for a year before being required to run for election.
“It doesn’t do the public any good to evaluate a judge based on a few months’ service,” Cervantes says. Besides, it’s hard to recruit candidates who will have to abandon their law practices, give away cases and lay off employees, only to serve a few months before losing an election, he says.
But Senate Majority Floor Leader Michael Sanchez disagrees. He argues that partisan elections give more power to the public by making them a bigger part of the process.
“People need to hear the judges for themselves, assess their demeanor, temperament and knowledge of the law and make an informed decision,” Sanchez says.
Despite appearances, he thinks nominating committees are rife with politics and behind-the-scenes deal-making.
“At least the election process is transparent. The people may vote for this guy because he’s Republican or that guy because he’s a Democrat, but at least it’s out in the open. It isn’t phone calls [between commission members] saying, ‘If you vote for my guy here I’ll vote for your guy there.’”
Cervantes says a lot of people who would make great judges just want to be judges.
“I’ve tried to recruit them, that’s their concern: They don’t want to be politicians,” he says.
The American Bar Association has argued that while yes-or-no, nonpartisan retention elections give the public the opportunity to remove a problem judge, partisan elections only serve to introduce more politics into the system.
And elections can have a serious impact on the people who come before the courts. A Brennan Center review of research on the impact of elections on judges’ decision-making found that judges are more harsh toward defendants in criminal cases when they’re facing an election—and one can imagine the prospect that critics will pounce on the opportunity to run a campaign ad calling them soft on crime.
Besides, it would be foolish to think that judges are political eunuchs, says Paul Gessing of the free market Rio Grande Foundation.
“Courts are going to be political animals,” he says. “More often than not, judges are going to come in with preconceived notions and they’re going to judge them based on those notions instead of calling balls and strikes according to the law. That’s the same here and across the country.”
Merit Doesn’t Always Equal Diversity
Diversity is a problem in state-level courts across the country, where women make up just slightly more than a quarter of judges and less than 10 percent are people of color. A 2010 survey found that more than half of state supreme courts were made up entirely of white justices.
Critics say one unintended consequence of a system like New Mexico’s—asking judges to apply and then having a commission pick candidates based on merit—is that the end result can be an awful lot of white guys in black robes.
But that’s not what the New Mexico Supreme Court looks like today.
“I think we do a pretty good job of diversity in New Mexico,” Sen. Wirth says. “We have a Latina governor, a huge percentage of Hispanics in our Legislature, and I think it’s fantastic that two of our Santa Fe judges, both Hispanic women, are part of a majority on the Supreme Court.”
Although the diversity of New Mexico’s Supreme Court looks good now and the state looks good compared to others, the New Mexico judiciary fails to mirror the population of the state as a whole, according to an analysis of the “Gavel Gap” by the American Constitution Society for Law and Policy.
Women of color make up more than 30 percent of New Mexicans, yet they’re only 15 percent of judges; meanwhile, white men are only 20 percent of the New Mexico population but nearly 40 percent of judges.
Turnout is Terrible
The biggest problem with judicial elections is that voter participation tends to be terrible. On the one hand, polls show American voters generally like the idea of being able to participate in the selection of judges by voting.
On the other hand, having a bunch of judges running in retention elections makes the ballot longer. That’s a problem for several reasons, according to UNM political science professor Lonna Atkeson, who has been doing research on local elections, including voter surveys, since 2006.
First, voters don’t like it when a ballot is long. In Atkeson’s 2014 survey of Bernalillo County voters, about 70 percent thought the ballot was too long. That year, nearly a quarter of voters said they didn’t fill out the entire ballot.
What did they skip? The retention questions. Respondents said they didn’t have enough information about how to vote on the judges.
"People lead busy lives and it’s unique and rare that any member of the public would have time to research any of the judicial candidates."
“People lead busy lives and it’s unique and rare that any member of the public would have time to research any of the judicial candidates,” Ferguson says. “You want the ability to remove someone from the bench if they’re not doing their job, but how many people do you know who actually have any knowledge of who they’re voting for?”
Voter Guides Matter
How the heck are you supposed to know whether to vote yes or no on a judge you’ve never heard of?
The Judicial Performance Evaluation Commission interviews judges and collects surveys before recommending that they be retained or not. That information ends up online and in voter guides like those published by the League of Women Voters.
It’s important to look at those recommendations because voting on judges is important, says Peter Simonson, the executive director of the ACLU of New Mexico. “These are the folks who are going to be deciding longstanding conditional questions that could well influence your quality of life and, ultimately, your freedom.”