Around this time in an election year, I feel a little sorry for judges.

Right now, those running for judicial office are having a tough time because of the rules governing judicial elections.

You'll see a few judicial candidates at every political gathering, behaving ever so politely, hanging around with hopeful looks on their faces as if they're waiting for someone to ask them to the prom.

Judges run for office under a wacky system, the result of a 1988 state constitutional amendment that was called judicial reform. I voted for it, persuaded by earnest lawyer friends, but I sometimes wonder what sort of pig in a poke we bought.

Judges often start by being appointed to fill vacancies. When a sitting judge retires, candidates for the position apply to a judicial nominating commission (judges love to retire at the most inconvenient times). The commission makes recommendations to the governor, who chooses a judge to serve until the next general election.

To keep the judgeship, the appointed judge then has to run for office. Other candidates may run for the same position both in the primary and the general election, so the appointed judge can be knocked out of office after the appointed term.

After the judge has been elected once, the judge no longer has to run against other candidates. Instead, he or she must run in a "retention" election at the end of every term. There is no opposing candidate, but the voters can kick the judge out by voting "no." Retention requires a 57 percent majority – a uniquely New Mexico quirk.

We voters get a little help in retention elections. Another board, the Judicial Performance Evaluation Commission (JPEC), evaluates judges running for retention and makes its evaluations public 45 days before the general election. Then the voters have the final say.

Aside from the commission, it's almost impossible for us to find out about the people we're voting for. Most of us don't see what judges do or how they do it. The vast majority of courtroom activities receive no news coverage. There's no way to tell whether a judge is fair, competent, legally correct or even attentive (not snoring on the bench) unless you go to the courtroom and observe for yourself, which normal citizens don't have time to do.

And there's a de facto gag order on what judicial candidates can and cannot say, enshrined in the state's Judicial Code of Conduct. They can't say much.

They can't tell us their views on issues because their views don't matter.

The underlying principle is that the essence of a judge's job is to make decisions about specific cases by applying existing law. So a judge is not supposed to apply his or her own opinions about which laws are right or wrong, better or worse, sensible or illogical.

They are allowed to tell you about their biographies and experience, but they are not allowed to say nasty things about opposing candidates. They are allowed to talk about their views on improving the judiciary and about their understanding of what the law is or how it works, but not whether it's good or bad.

One judge candidate told me she is sometimes asked whether she is pro-choice, an issue some voters care about. The judicial rules don't allow her to answer the question, she says. She ducks out of answering but says instead, "I'm a lifelong Democrat," allowing voters to draw their own conclusions.

Before our judicial reform, New Mexico judges ran in regular partisan elections like other officeholders. If the goal is selecting well-qualified impartial judges, the current system is probably a huge improvement on that.

There's a continuing debate, not at all limited to New Mexico, over what the best system might be. Just look at the U.S. Supreme Court and remember, we want no lifelong appointments.

 

Merilee Dannemann is an independent public policy professional in Albuquerque. Contact Merilee Dannemann through triplespacedagain.com.