There’s no perfect system of picking judges

During the recent election, while national attention was focused on Ted Cruz and Beto O’Rourke, something remarkable happened in southeastern Texas. As reported in the Houston Chronicle, the courts of Houston were cleared “of all elected Republican judges, leaving only Democrats on the bench in civil, criminal, family, juvenile and probate courts.” As best I can tell from Ballotpedia, no fewer than 32 incumbent Republican judges lost their seats. It was an electoral massacre.

It’s easy to say that party affiliation isn’t the best way to judge a judicial candidate.

But then, what is? It’s a serious question. I’ve been involved with the law for 36 years now, and I don’t know the answer. In part that’s because the qualities most valuable in a trial judge — patience, honesty, decisiveness without rudeness, and the rare combination of book learning, street smarts and people skills — are impossible to demonstrate on the campaign trail.

Then, too, it’s the nature of political campaigning to promise grand solutions to the world’s big problems. Which is more or less the opposite of the task performed by trial judges as they work to resolve a dispute between two litigants. Top of the ballot candidates paint murals, but trial judges are miniaturists.

In some European countries, judging is a career track. Young lawyers have the option of joining the judicial bureaucracy and working their way up. It’s much different in America. All American judges arrived at their current position via mid-career switch. Either they won an election or they were appointed by the president or governor. In America, becoming a judge is never anything but political.

But it’s a peculiar kind of politics. Here in New Mexico, shortly before the election, controversy broke out about television advertisements targeting five Republican appellate judges appointed by outgoing Gov. Susana Martinez. The hardhitting ads were slick and nasty and immediately denounced by candidates from both parties. The ads were unprecedented in our judicial races. And they are almost certainly harbingers of things to come.

According to The Openness Project, major funding for the ads came from a coalition of personal injury lawyers. I have no inside information about the motivation of the lawyers who chipped in, but it’s not hard to guess. They were betting they could obtain more favorable rulings from the Democratic challengers than from the Republican incumbents.

It may have been a fool’s bet. It certainly wasn’t based on promises from the candidates themselves. Under the Code of Judicial Conduct, candidates may not “make pledges, promises, or commitments” to be anything other than completely impartial regarding every legal issue that may ever arise. In practical effect, competing candidates for judicial office must pretend it makes no difference which of them wins. Which, of course, neither believes. You shouldn’t believe it, either.

In New Mexico, we offer would-be judges a package deal. You can’t be a judge without also being a candidate. In between elections, if a judicial vacancy opens up, the governor gets to name a replacement, but the replacement must run in the next general election. (After winning one contested election, judges face up-or-down retention votes.) Yet after making judges run, we stop them from telling us what they’ll do if they win.

The absence of reliable information creates a vacuum. We shouldn’t be surprised that the vacuum is filled by unreliable information instead, for example, by advertisements that use ominous music and eyecatching visuals to mask the vaporous vagueness of their insinuations. In retrospect, the wonder is that we haven’t seen slash-and-burn ads in judicial races before.

All of which might sound like an argument for ditching elections in favor of merit selection of judges. But here’s the deal about so-called merit selection. It always ends up with some powerful person deciding which job-seeker receives the gift of a prestigious public office. Back in Andy Jackson’s day, we called that the spoils system.

In New Mexico, when a judicial vacancy occurs, a commission provides the governor with a list of qualified would-be judges. If you were governor, and had to choose from a list of qualified applicants, what criteria would you use? If you’re anything at all like the men and women who have actually occupied the office, you’d look first at party affiliation — just like the voters in Houston. If more than one applicant belonged to your party, you’d have to apply more fine-grained criteria. Do you want a fearlessly independent judge, or a personally loyal one? Should you reward a stranger, or someone who contributed to your campaign?

That’s why we stick to our system of judicial elections: to avoid the many invitations to corruption presented by “merit selection.”

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal. column.tips@gmail.com