Email us (at nmpj@dfn.com) with your feedback, comments, questions and ideas.

With the pending retirement of Supreme Court Justice Richard C. Bosson, a nominating commission is set to meet this coming Monday to interview eight lawyers who have applied for the vacated position.

The Role of the Nominating Commission is Misrepresented to New Mexico Voters

Some headlines around the state feature the following wording:

"Nominating commission to narrow field of high court hopefuls " [Emphasis added by NMPJ]

And the following line appears in the Santa Fe New Mexican:

"The panel will then narrow the field of applicants and submit a list of finalists for consideration by Gov. Susana Martinez..." [Emphasis added by NMPJ]

But is that true? Is that the role of the commission? To "narrow" the field?

Well, no, not really. The law doesn't authorize them to do that. And it certainly doesn't require such an action.

Abuse of Authority

It is definitely true that nominating commissions through the years have arrogated powers to themselves to be the "deciders" of who gets to be on the court. In some instances they have so badly abused their role as to effectively rule that former members of the Supreme Court were not "qualified" to be appointed to the district court.

They did this by carefully voting to leave a former Supreme Court justice off a list sent to the governor of qualified applicants for district judge. After all, this is New Mexico, so ignoring the law, especially by judges, can be more or less routine.

The New Mexico Constitution

The nominating commission is authorized by Article VI, Section 35 of the state constitution. That section contains more than 600 words, but the key phrase reads:

"...the commission shall meet...and...submit to the governor the names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission." [emphasis added by NMPJ]

The only actual authorization granted to the commission is to determine if each of the eight applicants is "qualified."

Commission is not "Non-Partisan" — As Described in Newspaper Coverage

Another line in a story in the Santa Fe New Mexican says:

"The nonpartisan commission is chaired by University of New Mexico School of Law Dean Alfred Mathewson, who serves as a nonvoting member except in the case of a tie." [Emphasis added by NMPJ]

This is simply not accurate. There is nothing "nonpartisan" about New Mexico judicial nominating commissions. In fact, the state constitution specifically requires that Democrats and Republicans be identified on the commission, and that one party may not have more members than the other: 

"...each of the two largest major political parties, as defined by the Election Code, shall be equally represented on the commission."

This doesn't mean there will be 8 Democrats and 8 Republicans on a commission, or 6 and 6, but that whatever number one party has, the other must have the same—at least nominally*.

(*"Nominally," because the task of ensuring both major parties are equally represented is left to the "state bar and judges on the committee." In practice, the state bar has relatively few Republicans; the same goes for judges. In years past, this has often meant that those selecting additional "Republicans" to fill out the commissions have ended up selecting extremely "obscure" members of the GOP, whose names have been entirely unknown or unheard of in Republican circles. Those "fill-out" members, selected by the bar association, have—not unpredictably—ended up voting with the Democrats on their commissions. There is some indication that the bar may have become more sensitive to charges of impropriety in recent years, and its "Republican" appointees may have more legitimacy than in the past.)

The history of New Mexico judicial nominating commissions—which were adopted by the voters in November 1988—far from being free of partisanship, or based strictly on "merit," is one of overt partisan wrangling and manipulation.

"Rules" Adopted

We notice on the UNM School of Law website that someone has adopted "Rules Governing Judicial Nominating Commissions."  

We don't know where the rules come from, or when they were adopted. There is no reference number for the rules, and they don't appear in the New Mexico Administrative Code. We certainly are not saying that saying they were not properly adopted, it's just at this point we haven't been able to determine their source or authority. "Rules" are not mentioned in the constitutional amendment adopted by the voters November 8, 1988.

Here are some of the provisions of the "Rules" which differ from the constitutional amendment itself:

Solicitation, Recruitment of Applicants

Constitution:  "The commission shall actively solicit, accept and evaluate applications..." 

NOTE:  This is fairly routine and standard language meaning that the vacancy in question needs to be made public and applications invited.

"Rules":  "The chair and the commissioners to actively solicit applicants for the position in the following ways:  Notify the Bar Commissioners who represent lawyers in the Judicial District, asking them to suggest candidates and encouraging them to personally contact qualified attorneys to ask them to apply...and place telephone calls to encourage them to apply."

Added to these "Rules" are these seemingly improbable disclaimers:

"When actively seeking qualified applicants, commissioners shall inform the prospective applicant that being approached by a commissioner does not guarantee a nomination. Each applicant, whether actively recruited or independently seeking a nomination, will be subject to the same investigative and interview procedures. It is important for recruited applicants to realize that they will not be given special consideration simply because the commission is inviting their applications." 

Closed Session

Constitution:  The Constitution has no provision for a closed session, or any secret proceeding.

"Rules":  "...the commission may go into closed session to discuss the applicants' qualifications and to evaluate them..." 

Secrecy of Proceedings

Constitution:  The Constitution has no provision for proceedings that produce no record of deliberations, debate or votes preserved for the public.

"Rules":  "The discussion during closed session shall be confidential. The extent of confidentiality shall be determined by the commission, but, in any event, shall extend to prohibit express or implied attribution of comments or opinions to individual commissioners. As part of the discussion of the applicants, straw votes, non-binding and by secret ballot, shall be taken to determine support for particular applicants."

Duties of Commission

Constitution:  The Constitution specifies that the commission is to submit to the governor the names of persons qualified for the judicial office and recommended for appointment..."

"Rules":  "In recognition of the fact that the New Mexico Constitution vests the Governor with the authority to appoint judges and that the commission does not select the judges, the commission should strive to recommend a list of two or more names for each position to the Governor.

Judicial Nomination Commissions More Partisan than Straightforward Appointments

Just as with the national government, it is probably more democratic to allow the elected executive to appoint judges according to his or her own criteria. President Obama does not have to wend his way through a "nominating commission."

Instead his "commission" is his own administration and White House advisors and researchers, sifting through records of jurists around the country, trying to match those who support his form of activism. Like it or not, he was elected, and that is one of the consequences, or rewards, that accrues as a result of an election.

Allowing governors, whether Bill Richardson or Susana Martinez, the same prerogative, is probably the best polity. In any case, it is certainly better than using the so-called nominating commissions.

New Mexico's 27 year-old system is generally classified under the rubric of the "Missouri Plan," so named for the state which first instituted a similar proceeding for appointing judges. 

But history has shown, unfortunately, that there is absolutely no more merit in this approach than in straightforward, open government appointments.

Visible Consequences

Rule by Elites—Lawyers Selecting Lawyer Buddies

Under New Mexico's current law, the power to select judges is placed in a small, unelected, unaccountable commission, comprised of elites, either from the legal community, or activist politicians, or both. In fact, the main force empowered in New Mexico—effectively given decisive control in fact—is the New Mexico Bar Association. 

Consequences for the Law Itself

So it's no wonder the Supreme Court, and courts in general over the past 30 years, have openly done the bidding of the Trial Lawyers Association, the plaintiffs' bar.  In so doing they have expanded almost beyond credulity the extent to which matters may be opened up to lawsuit, stretched the limits of the concept of liability, and the largess of the tort system.  

They have done damage to the definition of recovery and the entire civil system, increasing costs in every facet of New Mexico —whether people realize it or not—and have made the courts ever most costly and therefore less accessible to the average person than ever before.

The Imposition of Secrecy—the Closing of Government

As we have pointed out, these judges and their bar association colleagues operate in secret with no public accountability.

What has happened, historically (it may be better now) in New Mexico, is that a commission usually ends up with about 5 or 6 known or identifiable Republicans, about 7 or 8 known or identifiable Democrats and between 2 and 4 obscure members, usually nominally Republican or "independent" but who are well-known to some members of the Democratic lawyer group.

This has resulted in a deeply politicized process. With a built-in majority focused on outcomes, not process or merit, the result has been backroom-dealing, hidden from public view, that has ended up stocking the state courts with garden variety trial lawyers, biased in favor of "results-oriented" judging rather than actual legal proceedings. 

As a result, there aren't that many judges in the state who instinctively ask the question; "What does the law say?"

Email us with your feedback, comments, questions and ideas.

Democrat newcomer Melanie Stansbury, a symbol of the new out-of-state Anglo dominance of the Democratic Party of New Mexico, swept to an easy victory in yesterday's special election in Congressional District 1. We expected her to win, after all the Democrats have a big edge in the district, she had an enormous fundraising advantage and much more dark money as well.

What was somewhat unexpected was the margin. Just seven months ago, Congresswoman Deb Haaland had defeated Republican Michelle Garcia Holmes 58-42. A couple of factors led us to expect a somewhat closer margin in the special election.

First of all, the Democrats control the White House—that usually militates in favor of the party out of power. Second, the turnout was, as is always the case in a special election, very low—another factor that works in favor of the GOP. Third, New Mexico isn't doing that well economically, as the policies of both Biden and Governor Grisham continue to adversely impact New Mexicans' lives.

While it is true that last Friday's absentee and early voting totals showed a huge advantage for the Democrats, 42,325 to 19,869 (with 8,776 independents and others), that kind of advantage is not that unusual, and was similar to 2020.

All things considered, we were expecting something closer to a 55-45 result. We certainly weren't expecting the outcome to be worse than 2020. But it was. This morning's totals show Stansbury with 60.33% and Republican Mark Moores with 35.66%.

That's a winning margin of 24.67%, just over 50% higher than Haaland's 16.38% margin just seven months ago.

What Happened?

The Republicans nominated their best candidate. Moores was easily the best choice available, but he was vastly outspent, and dark money from the usual national Leftist actors flooded the state.

But the complaint we heard most loudly from Republicans, both last night and in the days leading up to election day, was "Where is the state party?" "What exactly is Steve Pearce doing?"

As the results poured in last night the complaints got even more vociferous.

Last month we reported the news (first given to us by a Republican state senator) that Pearce is calling around the state to drum up support for his own run for governor next year—it would be his fourth try for statewide office.

Last evening, a former Republican state lawmaker told us that:

"Pearce isn't interested in helping anyone other than Steve Pearce. The only money he's interested in raising for the state party is whatever he can direct to his own race."

We've heard many similar comments.

The consensus bottom line from New Mexico Repubicans appears to be that Mark Moores was a competent, articulate candidate who was left hung out to dry by the Republican Party of New Mexico—a party that is controlled by Steve Pearce and his sycophants, and that is interested only in the personal goals of Steve Pearce.

This is, perhaps, not an opinion held by every single Republican, and certainly not by those who are still disciples of Pearce, but it certainly reflects the predominant opinion held by Republicans.

One former Republican officer who has moved out of state told us last night:

"How many losses will NM Republican insiders stomach before they demand a change in party leadership? There is no bottom for this group of knuckleheads. And it's only going to get worse with redistricting on the horizon."

He was of course referring to the Pearce insiders who became extremely jealous of the electoral success of former Governor Susana Martinez and who broke ranks with her after she had led the charge — by raising and spending some $3 million — to capture the state House of Representatives in 2014.

The dissident group, which, as we have reported before, included Pearce, John Billingsley, Harvey Yates, Mark Murphy, Anissa Galassini Ford Tinnin and others, quickly made a shambles of Martinez's monumental achievements, losing the House back immediately and compounding their blunders by driving the numbers down. They lost 14 seats in just two cycles. The former operative went on:

"It is amazing to see what the anti-Susana group has done. They ruined it all for petty shit. They have truly burned it to the ground. And they'll never pay a price for it."

That is true. The culprits will not pay the price. Instead, it is New Mexicans who are suffering as they are forced to watch, helplessly, as the "progressive" policies are forced on them. No, Pearce and the gang will not pay the price. But their victims will pay the price for years to come. 

Results Table

Unofficial results, thus far, are shown below. As you can see, Moores ran behind the 2020 Republican pace in all five counties. As an example, he should have carried Torrance County 2 to 1, but won by only a 54-33 margin. Similar results are visible everywhere else. In 2020, the GOP carried the Valencia County portion with 53% of the vote—yesterday, Moores did manage to win the county, but with less than a majority.

About two weeks ago, one former high-ranking Republican official expressed his fairly severe annoyance with Aubrey Dunn's constant party-switching and publicity-hound shenanigans, telling us:

"I certainly hope Dunn does very poorly, and I doubt he'll get even five percent of the vote."

We actually believed the gentleman would be wrong and that Dunn would get about 5%. But the Republican was correct—Dunn got only 2.68% of the vote. Apparently, most New Mexicans are tired of Dunn's shenanigans as well. Dog tired.

TV talking head pundits tell lies all the time, most of the time with little or no pushback from hosts or other talking heads. In that regard, KNME’s New Mexico in Focus is little different from most CNN, MSNBC, or other cable news shows.

We don’t talk much about New Mexico in Focus, mainly because—as is the case with most PBS affiliates—no one is watching, so little harm is done either way. We mean no disrespect to Channel 5—they have the same low viewership as other public TV stations. They work hard at producing a quality show. Low viewership is just the way it is with public TV.

Now Martha Burk is probably the most consistently egregious liar in the show’s lineup, but this past May 14 the erstwhile "contributor" let fly with a genuine whopper. Here’s what she had to say during one of her trademark rants:

“By the way, I did the math once again, and if the minimum wage had kep [sic] up with inflation since the last minimum [sic] was passed in the 1980s, you know what it would be today? $44 an hour. “

No, she didn't. (Or if she did, her "math" was something well below Pre-K standards.)

The host, Gene Grant, responded with his normal “wow!” This is unfortunate, but it’s the consistent response from the affable Grant, who appears to be bowled over with amazement at virtually every single comment from a left-wing commentator—not only taking them as gospel, but expressing genuine gratitude for what he considers to be uniformly brilliant insights.

Grant does occasionally push back on those he considers right-of-center, but most of the time, pre-COVID at least, the panel has been either 4 to 1 or 5 to 0 left-of-center. (And quite a number of those who are there occasionally to supposedly provide a "conservative" perspective are far from that.) But we digress.

We are not Asking People to be "Mathematicians," But Rather Just to Think for a Moment

Now, keep in mind that the work year is 2,080 hours. So, if you do the math, Burk is alleging that the minimum wage—if only it had kept up with the Reagan era standard—would result in an annual wage of $91,520. Seems reasonable, right?

Now, we’re not asking everyone to multiply by 2,080 immediately, but they could multiply by 1,000 or 2,000 and have a general sense that the lady is suggesting that the annual minimum salary would be, say, $88,000. You don’t have to be a math “wizard” to do that in your head.

But again, no pushback from the host. And later in the same segment, pundit Laura Sanchez, a practicing attorney, said, “Martha has a point.” No, Martha doesn't have a point. Or rather, she may have one, but it’s totally fake, as are most of her “points.”

Burk calls herself both a "Political Psychologist" and a "Women's Issues Expert." Pretty proud titles, albeit self-annointed ones. But one thing she is not is a graduate of an 8th Grade Math course.

The “1980s” Were Not the Last Time “the minimum” was Passed

The most recent change to the minimum wage was in 2009, when it reached its current level of $7.25. But changes were also made in 2008, 2007, 1997, 1996, 1991, and 1990—all of which Martha apparently overlooked when she did her “research” and “did the math once again.”

Martha, do the show and its numerous viewers a favor: Stop doing the math.

The last adjustment to the minimum wage that occurred “in the 1980s” was the rise to $3.35 an hour in 1981. That would be equivalent to $9.84 an hour today. Not $44.00.

What Really IS True About the Minimum Wage and Current Value?

For those of you interested in something factual (the opposite of a Martha-ism) here is a timeline chart with the minimum wage changes through the years and their current values in 2021.

The original minimum wage, put into effect on June 25, 1938 was 25¢ an hour. That would be the equivalent of $4.73 today. The peak apparently occurred in 1968, when that year’s $1.60/hour would be worth $12.28 in today’s money. But at no time did anything ever approach “forty-four dollars an hour.”

Email us (at editor@newmexicopoliticaljournal.com) with your feedback, comments, questions, and ideas.

Intelligent Political Discourse—for the Thoughtful New Mexican

TV talking head pundits tell lies all the time, most of the time with little or no pushback from hosts or other talking heads. In that regard, KNME’s New Mexico in Focus is little different from most CNN, MSNBC, or other cable news shows.

We don’t talk much about New Mexico in Focus, mainly because—as is the case with most PBS affiliates—no one is watching, so little harm is done either way. We mean no disrespect to Channel 5—they have the same low viewership of other public TV stations. They work hard at producing a quality show. Low viewership is just the way it is with public TV.

Now Martha Burk is probably the most consistently egregious liar in the show’s lineup, but this past May 14 the erstwhile contributor let fly with a genuine whopper. Here’s what she had to say during one of her trademark rants:

“By the way, I did the math once again, and if the minimum wage had kep (sic) up with inflation since the last minimum was passed in the 1980s, you know what it would be today? $44 an hour. “

No, she didn't. (Or if she did, her "math" was something well below Pre-K standards.)

The host, Gene Grant, responded with his normal “wow!” This in unfortunate, but it’s the consistent response from the affable Grant, who appears to be bowled over with amazement at virtually every single comment from a left-wing commentator—not only taking them as gospel, but expressing genuine gratitude for what he considers to be uniformly brilliant insights.

Grant does occasionally push back on those he considers right-of-center, but most of the time, pre-COVID at least, the panel was either 4 to 1 or 5 to 0 left-of-center. (And quite a number of those who are there occasionally to supposedly provide a "conservative" perspective are far from that.) But we digress.

We are not Asking People to be "Mathematicians," But Rather Just to Think for a Moment

Now, keep in mind that the work year is 2,080 hours. So, if you do the math, Burk is alleging that the minimum wage—if only it had kept up with the Reagan era standard—would be $91,520.

Now, we’re not asking everyone to multiply by 2,080 immediately, but they could multiply by 1,000 or 2,000 and have a general sense that the lady is suggesting that the annual minimum salary would be, say, $88,000. You don’t have to be a math “wizard” to do that in your head.

But again, no pushback from the host. And later in the same segment, pundit Laura Sanchez, a practicing attorney, said, “Martha has a point.” No. She doesn’t. Or rather, she may have one, but it’s totally fake, as are most of her “points.”

Burk calls herself both a "Political Psychologist" and a "Women's Issues Expert." Pretty proud titles, albeit self-annointed ones. But one thing she is not is a graduate of an 8th Grade Math course.

The “1980s” Were Not the Last Time “the minimum” was Passed

The most recent change to the minimum wage was in 2009, when it reached its current level of $7.25. But changes were also made in 2008, 2007, 1997, 1996, 1991, and 1990—all of which Martha apparently overlooked when she did her “research” and “did the math once again.”

Martha, do the show and its numerous viewers a favor: Stop doing the math.

The last adjustment to the minimum wage that occurred “in the 1980s” was the rise to $3.35 an hour in 1981. That would be equivalent to $9.84 an hour. Not $44.00.

What Really IS True About the Minimum Wage and Current Value?

For those of you interested in something factual (the opposite of a Martha-ism) here is a timeline chart with the minimum wage changes through the years and their current values in 2021.

The original minimum wage, put into effect on June 25, 1938 was 25¢ an hour. That would be the equivalent of $4.73 today. The peak apparently occurred in 1968, when that year’s $1.60/hour would be worth $12.28 in today’s money. But at no time did anything ever approach “forty-four dollars and hour.”

Email us (at editor@newmexicopoliticaljournal.com) with your feedback, comments, questions, and ideas.

In a representative democracy—a republican form of government—elections are everything. The people must trust their electoral systems, otherwise there will be a spirit of chaos operating on one, two, or all sides of the electorate.

While there are in America today exaggerated claims of 1) election results infallibility on one side—the idea that we have a structurally sound system and that everything is just fine—and 2) massive fraud everywhere on the other side, neither claim is true.

What is True? We Lack Structural Integrity throughout the Country's Numerous Elections Systems

One thing that is true is that there are enormous gaps in the structural integrity of our elections systems. Those gaps will continue to exist until each state places in statute a series of checks and balances. Among those steps, the following are absolute requirements:

1) The only addresses that can be recipients of ballots are those addresses from which a voter actually requests a ballot;

Every entity in America—whether it is a Secretary of State or a County Clerk's office—that mails ballots out to locations or addresses, without having received a request for that ballot, is merely mailing blind. That's why people see piles of ballots at post office trash cans, in dormitories, retirement villages, assisted living facilities, nursing homes, and all kinds of group quarters.

All such ballots represent the seed money, the seed capital, from which all mischief, perceived mischief, and—most important—permanent doubt will inevitably grow.

2) The only in-person voter who can receive a ballot is one whose eligibility can be verified;

This is nothing more than common sense. You cannot withdraw money from your own bank account without identifiying yourself. Hell, you cannot even extract information from hundreds of almost meaningless online accounts you may have without a secure means of identifying yourself.

People will argue, "Yeah, but voting is a sacred right" (or somesuch formulation), and the answer is "EXACTLY, with regard to a functioning representative democracy, voting is far more important than these other things. That's why security is even more important for voting."

3) All requests for ballots must be validated by means of some form of verifiable link between the request and requester;

There must be some form of uniform, verifiable, data-related system which can be trusted to validate requests for ballots. New Mexico's online requirement to provide a driver's license number, along with the "last four" of one's social security number, combined with verification of address, and an oath, are all good examples of this approach.

4) Voter ID (which is consistently supported by 75% of voters in all polls, with strong majorities from all parties) must be a part of the system;

Such an overwhelming majority of the American people support positive photo ID because it is a daily—often multiple times daily—occurrence in all of our lives. The arguments against it are hollow and require the listeners to be either:

        a) willing to deny the reality of their own lives' experiences constantly; or

        b) remarkably stupid—believing they are fooling their fellow Americans by claiming that proof of identity is impossible to possess; or

        c) simply willing to lie for a perceived partisan "cause."

It is remarkable that there are 196 countries in the world, and the United States is the only one in which people can vote without being required to identify themselves. This shows the remarkable effectiveness of both illogical propaganda and the Democratic Party's use of that propaganda.

5) Returned ballots must have a system of validation, confirming the voter’s address, his or her last 4, and a signature that is verifiable.

The same verification process used on the requesting end must again be applied on the receiving end when the requested ballot has been returned. The process cannot be allowed to be hijacked.

Legitimacy

In political science, governmental legitimacy is based on the popular acceptance of, and recognition by, a governed people or society that the authority of the governing regime rests that very authority on a rational and legal system of institutional procedure.

In that system of institutional procedure, legislative bodies establish laws that outline logical means of protecting and preserving the public interest, and executive authorities enforce those laws.

When those procedures are properly followed, the governed people will then view their laws—in effect, their protections against illegitimate government—as right and proper.

In a representative democracy, the very foundation of legitimacy (on which all acceptable/accountable governance rests) is the election process.

In a society that depends on elections, as long as any segment of that society—be it Left, or right, or middle—does not have trust in the counting of votes, that society is laying the groundwork for perpetual instability and divisiveness.

Email us (at editor@newmexicopoliticaljournal.com) with your feedback, comments, questions, and ideas.