Merit selection supposedly safeguards judicial candidates from the corrupting influences of partisan campaign fund-raising and the perils posed therein by vested interests. Or as Editorial Board Member Barb Shelley bragged in a commentary in the Kansas City Star last year, “The non-partisan Missouri Plan has long shielded the state from the corrupting influence of money in judicial elections . . . .”
But not long after Barb Shelly crowed success over the defeat of an effort to repeal the Missouri Plan in her state, I blogged about how merit selection and retention was hardly the partisan politics pecuniary-poisoning prevention panacea it’s made out to be.
My comments were precipitated by Iowa voters turning out 3 supreme court justices from heretofore secure quasi-lifetime tenured positions on that state’s merit selected and judicial retention elected supreme court. See “The return of politics in judicial retention elections.”
So contrary to the braggadocio of pundits or the disingenuous self-interest of stakeholders, there is no cure-all, regardless of the methodology used in a given jurisdiction. Whether its open partisan elections where voters and not insular nominating commissions pick judges or its merit selection and judicial retention elections, each has pros and cons. But one thing is clear. Politics remains a factor in both. It’s naive to think otherwise.
And as though another reminder was needed that neither approach is free of “the corrupting influence of money,” there are the distressing allegations from New Mexico this month, as reported by “Capitol Report New Mexico.”
New Mexico, which is supposed to be another one of those taint-free merit selection and retention jurisdictions, nevertheless has the unpleasant task of dealing with “Another corruption case: Judge in southern NM allegedly says you gotta pay to get a seat on the court.”
According to “Capitol Report New Mexico,” “A grand jury came back Friday evening (May 13) with four charges against State District Court Judge Michael T. Murphy: two counts of bribery, one count of criminal solicitation and one count of bribery, intimidation or retaliation of a witness.” Judge Murphy, who was taken into custody last week, was booked, fingerprinted and told to relinquish his passport. He asserts his innocence.
According to one incendiary part of an investigators report, in 2007 Judge Murphy allegedly told a prospective candidate for a judgeship that she would have to make contributions to then Governor Bill Richardson if she ever hoped to get appointed to the bench. Also see Heath Haussamen « NMPolitics.net.
No rush to judgment.
But out of fairness to the process and out of my abiding adherence to ‘Covering Your Analysis’ to Lawyers Ethical Rule 8.2, (1), it’s important not to rush to judgment. In particular, remember what happened in Arizona last year with former Maricopa County Attorney Andrew Thomas and his so-called far-reaching corruption case.
That case, which implicated judges, public officials, lawyers and almost anyone, save for the courthouse cat, fell apart and was dismissed following a judge’s ruling.
And so until there is an adjudication, the presumption of innocence holds. Indeed, Judge Murphy’s lawyer, Michael Stout, says, “Judge Murphy looks forward to serving on the bench, and he is an innocent man and will be vindicated in due course.”
But given the scandal’s unseemliness, the case is understandably the talk of New Mexico, especially as it is being tied to former governor Bill Richardson. He left the governorship amidst allegations and corruption inquiries into members of his administration. Indeed, most recently the State Investment Council’s lawsuit has ensnared some of Richardson’s former administration officials.
Governor Richardson, though, strongly denies any involvement in the charges being made against Judge Murphy, telling the “Santa Fe New Mexican,” “Campaign contributions never influenced my appointments, and any suggestion to the contrary is outrageous and defamatory.”
But no less than current New Mexico Governor Susana Martinez, has also found herself weighing in on what is being called “another example of New Mexico corruption.”
What comes next.
How this all plays out in criminal court for Judge Murphy remains to be seen. But this much is certain. The smugly self-satisfied should temper their ardor. An “appointive bench” isn’t necessarily the cure-all for all that ails the body politic.
Indeed, last month in a New York Times Op-Ed, “You Get the Judges You Pay For,” UC Irvine Law School Dean Erwin Chemerinsky and Hofstra Law Professor James Sample reluctantly concluded its time to work instead to improve the open electoral system voters prefer, writing, “Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford.”
Bottom line, there’s no such thing as a perfect methodology, especially when dealing with the foibles, flaws and frailties of the human condition.
(1) Rule 8.2 Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.