“Merit” Selection Under Fire in New Mexico
December 21, 2011
In a stinging oped, New Mexico legislator Dennis Kintigh calls for a “serious review of how the judiciary and legal profession as a whole is held accountable” under the state’s “merit” selection system. Kintigh cites several recent incidents that “have diminished and tarnished the reputation and standing” of the state judiciary. One judge was removed after “mishandling a courtroom disruption and grossly violating the rights of scores of people;” another “resigned after an egregious drunk driving incident;” and yet another “was found to be cavorting with a prostitute;” and a few years back, “the chief judge in the largest judicial district was caught possessing cocaine.”
The “merit” selection campaign likes to pretend that judges chosen under their preferred system have a monopoly on virtue. The long catalogue of ethical abuses cited by Kintigh suggests that judges – whether chosen under “merit” selection or democratic elections – are simply human, like all other public servants. While judges chosen democratically through elections are readily accountable to the people, judges chosen by “merit” commissions are accountable to no one. And, as Kintigh observes, “history has demonstrated over and over again that power and accountability exclusively held by a small group [like a “merit” selection commission] leads to catastrophe.”
Kintigh recalls the wisdom of James Madison, as I have often done myself, who wrote that “if angels were to govern men, neither external nor internal controls on government would be necessary.” Open, democratic judicial elections provide that “external control” Madison believed was so necessary – “merit” selection leaves us only to hope that all judges will be angels.
The Case for Secret Judicial Nominating Commissions
September 20, 2011
In a 9/19 op-ed in the Albuquerque Journal, Kevin Washburn, the chair of New Mexico’s judicial nominating commission, gamely argues that deliberations by the commission should be allowed to continue behind closed doors, with no public oversight. Even though I completely disagree with his position, I have to say Washburn makes his case with none of the demagoguery, elitism or arrogance that has become a depressing staple of Sandra Day O’Connor and the George Soros-fueled “merit” selection movement. But seeing such an obviously decent, public-spirited person as Washburn tie himself in knots defending the notion that one-third of our government must be chosen behind closed doors makes it even more apparent that “merit” selection is a fundamentally bankrupt idea.
Washburn acknowledges that “the case for transparency… is strong,” but that “unfortunately, transparency can undermine frank and robust deliberations.” Members of the judicial nominating commission, Washburn worries, “may be reticent to speak up and actually deliberate if their discussions occur in front of the public or the media.” Or they “may fear retaliation by a candidate who later becomes a judge” – particularly if the member happens to be a lawyer. “In sum, full transparency could mean that no actual deliberation occurs, and thus may actually harm the deliberations process.”
The most carefully-considered counter-argument to all of this is: So what? In a democracy, the interests of the people in having their public servants chosen in an open, accountable manner far outweighs the delicate sensitivities of any “merit” selection commissioner. If a commissioner cannot make a substantive case for or against a potential nominee to the public, then he or she has a duty to decline a spot on the commission in the first place or step down. If lawyers are so fearful about potential conflicts of interest, then maybe there shouldn’t be any lawyers on the panels. If transparency will “harm the deliberations process,” thereby producing inferior judges, then it’s time to scrap the system altogether.
Of course, the real answer is to put the people themselves back in charge of picking judges, through fair and open elections. No secret deliberations. No conflicts of interest. No worries about reprisals from powerful judges.