Saturday, November 26, 2011

Saving the Judiciary from...

This essay originaly appeared as an Op-ed in the Albuquerque Journal on November 20th as "Judiciary should not be above reproach." I'm not sure I like that title because it would be nice if it was.

It has been with tremendous sadness that I have followed the recent developments regarding certain members of the New Mexico State Judiciary in various parts of the state. There have been incidents and allegations that have diminished and tarnished the reputation and standing of this branch of government.

Generally, people understand and expect the legislature to be a partisan and contentious institution. I don’t believe that is a bad thing. Policy concepts that cannot survive the crucible of vigorous debate are probably not valid or worthy of implementation. Sometimes it takes years for policy to be implemented. During that time each of us in the legislature will critically examine the concept, and without hesitation challenge those we feel are invalid. It keeps all of us “on our toes.”

Similarly, the executive branch is constantly criticized and held accountable primarily, but not exclusively, by the opposition party. Again, this is as it should be. This cycle of confrontation and partisanship serves us well and is expected in these two branches.

The judiciary is somehow expected to be above all this, however, and therefore, immune to this contentiousness associated with the failings and shortcomings of mortal man.

Recent events and recent history have shown us that is an unreal expectation. We have seen a state district court judge removed for mishandling a courtroom disruption and grossly violating the rights of scores of people. A recently elected appellate court judge resigned after an egregious drunk driving incident. Another district court judge was found to be cavorting with a prostitute. Finally, we have the distressing, troubling, and sad saga of the district court judges in Las Cruces.

The unproven allegations of misconduct in that case are chilling. Statements that are reportedly recorded display an appalling and gross contempt for the rule of law and proper decorum. These allegations must have a full, fair and open hearing. But sadly, these recent events are not isolated.

Just a few years ago, the chief judge in the largest judicial district was caught possessing cocaine. The question of who provided that cocaine to a sitting judge and what this individual received in payment was never openly asked or answered. A former chief justice of the State Supreme Court attended a “going away party” for a disgraced political figure who had looted the public treasury and had betrayed the public trust. This act appeared to only disturb and dismay those who are NOT licensed to practice law in the state of New Mexico.

I believe that now is the time for a serious review of how the judiciary and legal profession as a whole is held accountable. At this point, everything ultimately rests in the hands of five Supreme Court justices who are immune to, and independent of, meaningful outside accountability (when was the last time a justice lost a retention election?). I believe it is time to re-examine that approach. This is not a suggestion made lightly. The potential for any review of the current system degenerating into a partisan witch hunt is real and must be avoided.

The vast majority of judges I have known have been true noble servants of the people. I have gotten to know the chief justice on a personal level and have found him to be gracious and congenial. I like and respect him.

However, history has demonstrated over and over again that power and accountability exclusively held by a small group leads to catastrophe. The judiciary and the legal profession are too crucial to the success of our state for us to fail to have a system in which independent and outside individuals are the final arbitrators of misconduct.

Many are familiar with James Madison’s observation that, “If men were angels, no government would be necessary,” but few realize the phrase continues with, “If angels were to govern men, neither external nor internal controls on government would be necessary.” While the judiciary in many ways governs society, sadly, like the rest of government, it is not populated with angels. External controls are absolutely vital.