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The appointment of J. Richard Brown last week as state District Court judge in Carlsbad leaves much to be desired.

Not that Brown isn't qualified. Not that he wasn't vetted by the New Mexico Judicial Merit Selection Commission and recommended to Gov. Bill Richardson. Not that he doesn't have the confidence of Richardson.

Not that Richardson hadn't already appointed Brown to two previous state posts, including a different District Court judgeship in Carlsbad - a post Brown lost fair and square in the judicial retention election.

No, the much-to-be-desired part is that he wasn't really appointed by Richardson, who is rightfully aggrieved that the selection commission and state Supreme Court short-circuited his authority to make such appointments.

The commission recommended only Brown, and the high court, in lieu of Richardson's failure to rubber-stamp Brown, appointed him to the bench.

That's wrong. Despite learned legal opinions arguing such an appointment does not offend the separation of political powers among the three branches of government (executive, legislative and judicial), the bare reality is, the appointment does exactly that.

It may well be all involved acted legally in the Brown appointment, but that doesn't mean it's the right way to have made it. In the effort to make sure qualified people get appointed to run New Mexico's courts, clearly the pendulum has swung too far to one side - essentially allowing appointments to actually be made outside public purview, electoral accountability or recourse.

This isn't your typical political turf battle. This one involves:

The New Mexico Constitution.

The governor's traditional responsibility for appointing judges - once similar to the president's at the federal level.

The 1988 constitutional reform that created a hybrid selection commission-governor appointment process aimed at ensuring the candidates considered for appointment by the governor were qualified.

The flaw in the 1988 reform that allows an appointed commission, mostly made up of lawyers, to usurp the governor's authority by recommending only one person to him - a person who, if the governor balks, may be installed by the state Supreme Court.

In shorthand: The judiciary has the ability to appoint judges.

It should never work that way, in part because the commission, which in Brown's case tried twice to recommend other nominees, isn't elected by anyone. Judges are somewhat protected from elections - having to face only one after appointment, and then face only votes on retention.

In contrast, the governor faces repeated elections by popular vote. And as the state's chief executive, he is responsible to the entire state's electorate and is the best choice for making judicial appointments - for which that electorate ultimately can hold him accountable.

The selection commission's role should be to provide the governor with a pool of qualified nominees from which he makes the judicial appointment.

Among the remedies for what happened with Brown is simply to require the commission to recommend at least three qualified nominees for each opening.

Failure to do so should allow the governor to consider others for the position. That should be both a political and civic incentive for the commission to fulfill its intended function, preserving the appointment itself for the governor.

This time Richardson, who certainly isn't above overstepping his bounds, is right, and the Legislature would be wise in its next session to fix a judicial selection commission that is overstepping its intended and otherwise very useful role.