Here in New Mexico, we have a strange method of electing judges. Mostly, we don’t. New Mexico is one of the 17 states in America that uses the retention system. If you aren’t sure what this means, you’re not alone: very few people realize that voters in this state have very little to do with selecting their magistrates.
I conducted a scientific poll this week; I questioned the students in one of my classes and about a dozen people drinking beer at a bowling alley. This is the exact same method of random sampling used by the better news agencies like CBS and the National Enquirer. Very few of my respondents knew what I was talking about, though one guy at the bowling alley offered to make something up if I would buy him another beer.
Here’s the shortened version of the process. All judges are initially appointed by the Governor. At the next election, the judge runs against a partisan opponent. If the judge successfully retains his position, at each subsequent election the voters are asked whether or not they wish to retain the judge. The judge’s name appears alone on the ballot and voters can pull the lever next to his name. This is not a vote for the judge, but a vote to retain the judge. If 57% of the participating voters decide for retention, the judge stays in office for another term. If not, the process starts over..
There are some very good reasons to use the retention system. Do we really want our judges periodically begging and pleading with the public for votes and campaign funds? It is so much more dignified to have our prospective jurists begging and pleading with the governor for the same job. And if successful, we will just ignore the fact that the judge still has to go out begging and pleading for campaign funds to pay for the retention campaign.
Picking a judge requires a skill sadly lacking in the average dimwitted voter, someone who can only can be trusted with selecting lesser officeholders like congressmen, senators, governors, and the president. To select a judge, we need someone that can be trusted to exercise wise and sober judgment, someone like our governor… oh, crap. Well at least before every retention vote, there is a panel of experts that reviews the history of the judges and makes harsh and blunt evaluations. That is why in the current election, this panel is only recommending the retention of 75 out of 77 judges. It has no recommendation on the other two races.
I wonder how many voters really understand what is going on when they enter a voting booth and see only one name listed for a judge’s race. Do they know this is a retention election? Do they think this man is running unopposed? And why 57%? When the politicians who wrote this bill got together at a restaurant to hammer out the finer points, did one of them have a sudden insight while staring at a bottle of steak sauce?
Needless to say, our judges are usually retained. It must be rather difficult to actually lose a retention vote, unless at the time of the election the judge happens to be in jail. If we used the same system for national elections, FDR would still be president.
There seems to be a problem with this whole process. As a society, we don’t want to have minor judges selected for life, but at the same time we can’t quite trust the public not to elect Bernie Madoff to the state supreme court. Don’t laugh, Bernie’s got good name recognition and it wasn’t that long ago that Texas elected Jesse James to the position of State Treasurer. Several times.
Naturally, I have a suggestion. Instead of appointing or electing judges, let’s have a massive poker championship. Any member of the New Mexico Bar Association could buy in for $10,000 (chump change compared to the price of a good campaign). The final winner gets the job and the state keeps the cash to help finance the state judicial system. The winner can’t help but be smarter, or perhaps craftier, than anyone a governor selects.