Judicial debate: Nevada Supreme Court, Seat D: Judge and assemblyman outline legal philosophies

A state legislator and a district judge battling for a seat on the Nevada Supreme Court explained their individual judicial philosophies during a Las Vegas Review-Journal debate.

Assemblyman Ozzie Fumo and District Judge Douglas Herndon agreed that the role of a justice was to apply the law, but the two diverged somewhat when asked how the U.S. Constitution should be interpreted.

“I do believe the Constitution is a living, breathing document,” Fumo said. “As we evolve as a society, as the times change, the Constitution needs to be adjusted and interpreted accordingly.”

Herndon said he strives to “always keep an open mind” in researching case law.

“I believe our founders were incredibly wise in how they defined democracy,” he said. “It’s incumbent upon us to give meaning to the exact language of that document, but even they would admit you can’t anticipate the future. We have to be enlightened, and we have to give meaning to where we are as a society now as we interpret the provisions of that document.”

‘Born to do this job’

Fumo, first elected to the Legislature in 2016, has practiced criminal and civil law in Nevada since 1996. He touted his pro bono work as an attorney and said he was appointed by Clark County commissioners to serve as a hearing master for a police fatality fact-finding review board.

“I’ve spent my entire career fighting for hard-working Nevadans, both in the courts and at the Legislature,” he said. “I’m uniquely qualified for this job. … I was born to do this job. I’ve been in the trenches for the last 24 years.”

Herndon, who was licensed in Nevada in 1991 and appointed to the Clark County District Court bench in 2005, spent 14 years as a prosecutor, which included heading up the special victims unit at the Clark County district attorney’s office.

“I know about hard work, and I know what it means to reward people for the trust and faith they place in you,” Herndon said. “And I can assure the people of this state … everything I’ve learned in 15 years as a District Court judge will come into play as they trust me to be one of their Supreme Court justices.”

Fumo and Herndon are vying to replace Justice Mark Gibbons, who announced late last year that he would not seek re-election. A third candidate for Seat D, Erv Nelson, did not participate in the newspaper’s debate.

In the races where no candidate captures a majority of mail-in votes cast for the June 9 primary, the top two finishers will advance to November’s general election. If a candidate wins more than 50 percent of the vote in the primary, the candidate will win the election.

While the newspaper’s debates can be found on reviewjournal.com, they air Wednesday and Saturday nights on Cox Cable’s YurView Channel 14 as part of a video partnership between the media companies.

‘Experience matters’

Debate moderator Victor Joecks asked Herndon, who received an 85 percent retention rating in the newspaper’s 2019 Judicial Performance Evaluation, whether “the equivalent of a B grade is deserving of a promotion to the Supreme Court.”

Herndon’s retention score indicates that 85 percent of the lawyers who responded to the survey thought he should be retained. He was one of the highest-rated district judges overall.

“I do think experience matters,” Herndon said. “You look around our community, our state, our country, our world right now. People in critical positions, the public deserves to have people with experience in those positions. The Supreme Court is an incredibly busy and complicated court, even more so in the next couple years because of the things that are being pushed off right now.”

Turning to Fumo, Joecks asked whether he would recuse himself from cases in which he had taken a political stance in the Legislature, such as sponsoring a bill to abolish the death penalty or voting for increased restrictions on firearms and more power for labor unions.

“As a Supreme Court justice, I’m there to interpret the law for the cases that come before me,” Fumo said. “For instance, we don’t have a district attorney who becomes a District Court judge say you can’t do criminal cases because you’ve practiced criminal law for your entire career. You’re an impartial person at that time, impartial to the facts and apply the law to those facts.”

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.