Whom should the Democrats nominate to run in November for the new judicial position, with a half-criminal and half-civil docket?
The Judicial Nominating Commission considered nine strong candidates, sending four names up to Governor Lujan-Grisham. She, with General Counsel Matt Garcia, interviewed all four and nominated local lawyer Casey Fitch, who will serve at least until year’s end.
November’s election will decide who holds the position after that. The Governor selected Fitch; but former Magistrate Judge Richard Jacquez, whom she also interviewed, is contesting the Democratic nomination. Doña Ana County members of the State Central Committee will choose a nominee next week.
Many say the Governor’s selection should end the discussion. She’s a Democrat, and carefully vetted the choices. No one alleges anything improper about the process. In urging Democrats to nominate Fitch, the Governor noted, “Judge Fitch is a native New Mexican, with extensive experience in civil and criminal law and is an excellent public servant with an exemplary record as a lawyer and as a judge,” adding, “Our nominee must have an impeccable record, a proven record of public service, and a dedication to justice. Judge Fitch exceeds all of these criteria.
However, anyone has the legal and ethical right to seek a judicial nomination in the primary – or, where the primary is over, through the Central Committee, as Mr. Jacquez is doing.
These interviews were careful, and a far cry from the “How much did you give the Party this year?” sort we’ve heard allegations about. The Governor participated; and Garcia asked challenging “lawyer questions.”
I’ve talked to Fitch and Jacquez. I suspect either would be a reasonably good judge. I believe I saw, talking to Mr. Fitch, why the Governor chose him. I think they saw in Fitch a uniquely judicial temperament and recognized that he has an unusually broad range of experience, including a Ninth Circuit clerkship after law school. (Those hard-to-get positions give the holder a wide-ranging and intense introduction to deciding tough cases at a high-level. U.S. Circuit Courts of Appeal are the last appellate stop before the Supreme Court. They referee battles between some of the nation’s best lawyers.)
Interestingly, each candidate had a DWI conviction in his youth. Jacquez also had an ethics issue in 2004, when he was “informally admonished” for not providing defense counsel with significant evidence. The defendant was a cop. Deputy City Attorney Jacquez and defense counsel interviewed the arresting officer; later, days before trial, Jacquez provided defense counsel with a video of that officer talking about whether or not the defendant was drunk. The Judge reamed him out, and the Disciplinary Board said Jacquez should have produced the video before the interview.
If I were defense counsel, I’d sure want that video before interviewing the witness; but this was 16 years ago, Jacquez was a young lawyer caught in a political situation, and I think he learned from it. Lawyers commenting on Jacquez as Magistrate Judge say he did well, and ran a good courtroom.
Jacquez may want too intensely to be a judge. In 2018, he passed on seeking re-election to Magistrate Court for an unsuccessful primary run for District Judge; and in 2019 he unsuccessfully challenged Joy Goldbaum for Las Cruces Municipal Judge.
I hope the DCC chooses Fitch. I wouldn’t mind seeing Jacquez win some other judicial election; but I agree with the Governor that Fitch could be an especially good judge.
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[The above column appeared this morning, Sunday, 9 August 2020, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air on KRWG and on KTAL 101.5 FM (https://www.lccommunityradio.org/) during the week, and will be available on demand on KRWG's site.]
[For two weeks, researching this column, I had wanted to watch the Judicial Nominating Commission's "virtual" meeting in which Commissioners interviewed candidates. A terrible computer wipeout at UNM, followed by a positive COVID-19 case at the relevant department, delayed the process, but they finally got me the link right after I sent in the column Friday. I watched the interviews with Casey and Richard. Doing so tended to confirm what I'd already learned or figured out: Richard was a viable candidate, and sounded a whole lot better than one other candidate of whose interview I heard a portion; but Casey was a far stronger one. And the video helped me put my finger more clearly on why:
Casey Fitch brings to the table a wider and more applicable set of qualities and experiences. He has clerked for a federal judge, a 9th Circuit judge, and now for three years the U.S. Magistrate here. As Justice Miles Hannisee says in the JNC interview, 9th Circuit clerkships are plum positions that many strong candidates seek. They’re a unique boot camp for top lawyers; and I knew many who delayed big bucks from big law firms to spend a year or two clerking. Casey’s writing sample is not just well-written, but shows a level of complexity we don't see in Richard's. They’ve dealt with different kinds of cases. Casey has seen a varied and complex set of civil and criminal cases, heard them well or poorly argued, and written decisions, or drafts of decisions, that serve as precedent to lower courts. Decisions that will be read not just by Joe and Mary, or the local fence company and its former employee, but by top lawyers later litigating similar cases and trying to assess their chances and decide how best to argue to the 9th Circuit. No, he wasn't a judge, and the sometimes the written opinions that ultimately went out were often much changed; Casey thought them out, researched and analyzed the cases contesting attorneys cited, and wrote them, and likely some of them were published with little change from his draft. He was integrally involved in deciding cases and helping the court write decisions that are precedents U.S. district courts must follow.
As a lawyer, he also had some experience as a criminal prosecutor and as a public defender, as well as a lot of defense work in civil cases and a bit of plaintiffs' work. Since the new job is half criminal and half civil, with potentially a bit of family law thrown in, having done at least some work in all those areas is a plus, as is the fact that he dealt with all of them in helping judges decide cases and write opinions.
What I also saw in the hearing, and had been struggling to put my finger on when we talked, is what I would call genuine humility. A JNC commissioner had noted that Casey brought up his DWI as the start of changing his life, and the JNC commissioner thought that would enhance Casey's ability to empathize with addicts and people in rough situations. In the Commission interview, he says it was "an opportunity for self-reflection and the start of a program of recovery." He has also been a foreigner trying to make himself understood: he spent two years in the Peace Corps in Bulgaria, and he mentioned having learned German and Bulgarian -- not as gold stars on his report card but because of the "open-mindedness that goes along with a different culture." Being the foreigner often teaches one a kind of humility (and identification with folks who wander into a court feeling confused and intimidated by the legalese) that comes from not being able to make your needs or ideas understood by the surrounding majority. (He is proficient but not fluent in Spanish, being married to a woman from Juarez, and says he can converse well with his mother-in-law, who has no English.) I realized that a lot of his answers to the JNC were candid and self-deprecating, when they could have been more self-serving.
Sorry if I've run on a bit. I've no idea how the central committee members will view all this. Few are lawyers. What I hope I've said (and what they might see if they take the time to watch the JNC interviews at https://www.mediafire.com/file/vhshk7azonjneiw/file) is that while Judge Jacquez is certainly a reasonable candidate for the job, there's reason to be excited about Judge Fitch in this position. Some will feel they'd prefer a Hispanic candidate who grew up in Chamberino to an Anglo who grew up in Socorro. So would I, all things being equal. Some will complain that Casey has not paid his dues, politically; but this is a judicial position; and it is not as if Casey were a Republican, or held rightwing views. He just hasn't been much involved in politics.
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