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.
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The New Mexico Constitution.jpg)
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?"
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