Ethics For Democrats, Duck For Republicans

Hunting for an independent judiciary

I liked the explanation by New Mexico Supreme Court Justice Richard Bosson why he took himself off the Ralph Nader case: “I don’t need the Republicans to tell me how to do my job.”

They should clean their own house first. Like, they didn’t tell U.S. Supreme Court Justice Antonin Scalia to take himself off the case involving his duck-hunting buddy Richard Cheney. Or for that matter they didn’t tell the 5-4 majority to recuse themselves from Bush v. Gore.

As one partisan New Mexico Republican reminded the New Mexico high court, all Democrats: the Judicial Code of Conduct calls for self-recusal where “the judge’s impartiality might reasonably be questioned.” But it applies to everybody. This is not just a New Mexico ethic. It goes way up. Scalia used nearly identical language when he refused to remove himself from the Sierra Club appeal of its lawsuit demanding records from the vice president’s energy task force, saying, “I do not believe my impartiality can reasonably be questioned.”

Fact is, judicial ethics is primarily an honor code, federal, state and local. But appearing to be impartial can be especially tricky in New Mexico’s not-so-independent judiciary.

Judges, from the district courts to the appellate courts, run for election initially by party, and judges are declared from the start as either Republicans or Democrats (Independents and Greens don’t get anywhere.) So when a case like Nader comes up, all judges could be “questioned.”

This is not to exclude from political motivation the state legislators, Sen. Rod Adair and Rep. Daniel Foley, both R-Roswell, or Sen. Kent Cravens, R-Albuquerque, who screamed about letting the Democrats decide whether to let Nader on the ballot as an independent candidate for president. Remember, it is generally held that a vote for Nader is a vote against John Kerry.

District Court Judge Wendy York might have been doing good law when she ruled Nader off the ballot because he cannot be an independent here and a minority party candidate elsewhere. But the rule of law was lost in the glare of her $1,000 contribution last April to Kerry.

Under pressure she withdrew her opinion and recused herself, and another Democratic judge, one with no apparent record of contributing to his own party or candidates, issued the same opinion hours later.
As it headed for the state Supreme Court, Cravens held a news conference demanding recusal by three of the five Democrats, saying, “Ralph Nader doesn’t stand a chance in our Supreme Court.” And he meant it politically, not as a matter of law. The three, including Bosson, recused themselves, but for their own reasons. They did not credit the Republican findings that two of them had contributed and one had a husband who contributed to the Democratic party.

The operating principle here was the cynical premise that judges weighing substantive issues of law cannot be trusted to rise above politics, at least when the stakes are presidential. Don’t blame New Mexico. It began four years ago in Florida and Washington. But New Mexico politics makes it worse because judges in New Mexico have to campaign for election or retention. Campaigns cost money. Money comes from contributors. So there are two linings to the ethical cloud: giving money and receiving it.

The judicial code does not outlaw a judge doing either, but it does specify recusal where “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” If the current Adair-Craven ethical Puritanism is pushed to its logical consequence, the judicial system as it now stands would be disabled. They could call a news conference and bring pressure every time a contributor – or for that matter non-contributor — appears before a judge. Better to close your eyes and pretend that judges are not political.

A more reasonable solution is to do away with New Mexico’s embarrassing partisan election of judges, but that’s a battle the reformers have lost every time it comes up, going back to the fabled Constitutional Convention of 1969. New Mexicans have put their trust in partisan elections, grand juries and jury trials. The illusion that politics is what keeps the people in charge of the judicial system is not likely to vanish over night.

That perhaps is why there was little or no outcry when Gov. Bill Richardson overrode the constitution, with the support of a majority on the Supreme Court, and took control of the Judicial Standards Commission, which is sort of an ethics policeman. There is some irony in the fact that Adair at one point threatened to take Judge York before that very same commission.