dissenting:
The issue presently before the court is, as pointed out in the concurring opinion, whether Justice Young may properly sit in judgment of Nevius’ death sentence. I am unable to address this issue adequately, however, without first drawing attention to the overriding issue in this case, which is whether Nevius’ death sentence must be set aside by reason of the prosecutor’s having “stacked” the jury by deliberately excluding black people from Nevius’ jury.1
To get to the heart of the matter: We have before the court a representation by a member of the bar, an officer of this court, that the prosecutor admitted to having deliberately excluded black people from the Nevius jury and to having done “a good job of *670it.” The majority continues to maintain, incorrectly, I think, that the defense attorney’s charges of impermissible racial discrimination are “incredible” and that they need not be considered by the court.2 It is now clear to me that the uncontradicted report of the prosecutor’s racist comments must not only be considered by the court but must be taken as mandating the reversal of the death penalty judgment.
There is presently pending before the court Nevius’ motion to reconsider and vacate previous rulings in this case which reject his claims of racially-discriminatory jury stacking by the State. To me, the necessity for granting Nevius’ motion on these grounds is now clear. The pressing constitutional issues awaiting final disposition by this court render even more compelling Nevius’ pending request that Justice Young be removed from the case. Justice Young’s remaining on the case, given his alliance with the Attorney General and his “tough-on-crime” campaign stance creates an appearance of impropriety that is magnified by reason of the race-related constitutional issues advanced by Nevius.
It is true, as stated in the concurring opinion, that the majority opinion addresses only issues relating to whether or not a challenged justice should continue to sit in judgment of this case; but, as I have said, this justice’s qualifications cannot be adequately addressed without considering the very critical race-discrimination issue at the heart of this case. What this case is really all about is whether Nevius, a black man, must go to his death by verdict of a jury that was chosen in a manner that appears to have involved the deliberate exclusion of jury members of his race.3 Because this is the case, greater scrutiny must be given to the disqualification issues at hand.
*671More and more frequently this court is being presented with claims of error arising out of racial abuses employed by prosecutors during the jury selection process. In these cases we find prosecutors presenting one kind of excuse or another for their actions, claiming that their practice of removing minorities from juries is based on “racially neutral” grounds. The prosecutor’s saying in this case that he got rid of “all those niggers” on the jury and saying that “he did a good job” of doing so can hardly be claimed to be racially neutral; and I think that it is time at last that this court put a stop to what is seen by some as rampant racial bias in the criminal justice system in this state.
Nevius claims that Justice Young’s close political alliance with the Attorney General and expressions of bias in criminal cases create an appearance of impropriety that should disqualify the justice from sitting in judgment in this case. It is not, of course, necessary for Nevius to demonstrate that Justice Young has an actual bias in favor of the Attorney General or in favor of affirming death-sentence cases. Nevius has only to convince the court that to an outside observer there appears to be bias on the part of Justice Young. My position in this dissent is not that Nevius has demonstrated actual bias on the part of Justice Young but, rather, that the factual averments upon which Nevius relies rather clearly show an unacceptable appearance of bias.
Nevius’ claims of bias are partially based upon Justice Young’s close political alliance with the Attorney General, an alliance that arose while his appeal was pending. Nevius complains that the Attorney General gave to Justice Young in the last election what Justice Young himself described as a “particularly important” contribution, namely, the Attorney General’s public endorsement of Justice Young’s candidacy over that of another jurist. It is commonly believed that Justice Young owes his election success to the Attorney General’s public endorsements of his candidacy; and Nevius argues that the contribution is of such “importance” that Justice Young can no longer sit in impartial judgment in this case.
Justice Young and Justice Rose in a recent dissenting opinion, O’Brien v. State Bar of Nevada, 114 Nev. 71, 952 P.2d 952 (1998), have expressed their view that where a political “contribution is very large or greatly disproportionate to the contributions made by a similar class of contributors then an appearance of impropriety should be recognized.” Id. at 79, 952 P.2d at 957. Such “disproportionate” contributions, according to Justice Young himself, not only create the impression of impropriety, they create a judicial atmosphere that is “fundamentally unfair” and require that decision-makers “with [such] conflicts of interest not participate” in the decision. Id. at 78-80, 952 P.2d at 957-58. If we are to accept the position taken by Justice Young in *672O ’Brien, then Nevius presents a very credible argument that the Attorney General’s public endorsement is a far greater and more “disproportionate” contribution to Justice Young than the mere $10,000.00 involved in the O’Brien case.
In support of his motion, Nevius cites to American Bar Association documents relating to the “legitimate concern about a judge’s impartiality” that is present when “lawyers who represent such parties are known to have made contributions to election campaigns of judicial candidates.” The ABA Commentary to 5(C)(2) of the Code of Judicial Conduct states:
[Cjampaign contributions of which a judge has knowledge, made by lawyers . . . who appear before the judge may by virtue of their size and source, raise questions about a judge’s impartiality and be cause for disqualification as provided under Section 3(E).
(My emphasis.) One can certainly understand Nevius’ “legitimate concern about [Justice Young’s] impartiality.”
The source of the campaign contributions here (the State’s Attorney General, who issued an unprecedented and “important” public, political endorsement of Justice Young over another jurist) and the size of the contribution (characterized by Justice Young himself as being “particularly important” to his campaign endeavors) appear to me of such a nature as to “raise questions about a judge’s impartiality and be cause for disqualification.”
Nevius also claims that, in addition to forming a close and “important” alliance with the State’s chief prosecutor, Justice Young has, while the present case has been pending, publicly taken such a pro-prosecution, anti-accused stance as to make it impossible for Justice Young to sit in impartial judgment of Nevius’ case. For example, not only did Justice Young describe himself in campaign advertisements as a judge who was “tough on crime,”4 he presented himself as being a judge who had a *673“record of fighting crime” and supported his judicial crime-fighting record by claiming that he had “[voted] to uphold [the death penalty] 76 times.” Judges should be judging crime not “fighting” crime.5 Given the narrowness of Justice Young’s election victory, it is certainly reasonable for Nevius to maintain that Justice Young owes his position on this court to his political alliance with the Attorney General and to her unprecedented, ethically-suspect endorsement of his candidacy.
This court should examine critically the appearance of bias inferable from Justice Young’s crime-fighting stance and from the important political debt owed by Justice Young to the Attorney General. Such critical examination would demonstrate, I maintain, bias of a sort that demands the disqualification of Justice Young.
Nevius, who is black, presents evidence that his prosecutor said to his defense attorney about the jury selection process: “ You don’t think I want all those niggers on my jury do you?” The prosecutor does not expressly deny making this statement but, rather, claims not to “recall” using the word, “nigger,” claiming further that if he did use that word it was only because the defense attorney used it first. Whether the prosecutor used the offensive word or not, there is credible evidence that the prosecutor was trying to “stack” the jury racially and that he admitted to defense counsel that he “did a good job of it.”
This court is not, of course, competent to make judgments about a witness’s credibility. Under our constitution the supreme court is empowered to decide only questions of law, not fact. Nev. Const. art. 6, § 4; NRS 175.025. Even if the court had the power to rule that Nevius’ attorney was misrepresenting his conversation with the prosecutor, there is absolutely no justification for the court’s ruling on defense counsel’s credibility in this case. Even if this were not the case, there is no cause for believing that counsel is not telling the truth.
My calling attention to the racist aspects of this case has provoked a remarkably extravagant concurring opinion. According to the concurrence, my proceeding to “reconsider previously resolved issues” of racial discrimination in the jury selection process is not only impermissible, it is charged to have been motivated by my supposed “enmity” and “animus” toward other justices of this court. I have a very hard time trying to understand what it is about my discussion of the vital racial-discrimination question that would prompt my brother Rose to say that I raise this issue just to “take yet another shot at three of [my] perceived enemies.” I do not understand how a necessary discussion of the racial issues that haunt this case can possibly be seen as being a “shot” at anyone.
“Tough-on-crime” claims by judges are sometimes overlooked as being merely campaign puffing; but a judge’s claiming to be a judicial crime-fighter is, arguably, in a different category. The problem with “tough on crime” statements and boasting of a “record of fighting crime” is that such statements carry the implication that the judge would act in a biased manner (that is, in favor of the state) in criminal cases. In Washington, a judge was censured for campaign statements that he was “tough on drunk driving.” In re Kaiser, 759 P.2d 392, 394-96 (Wash. 1988).
For a general discussion of the failure of our judicial discipline machinery to deal with campaign misconduct and other serious judicial misconduct see Whitehead v. Comm’n on Jud. Discipline, Table of Disciplinary Oversights, Concurring Addendum to Order Granting Petition (No. 24598, October 28, 1994). Getting elected to judicial office seems to create an immunity against *673discipline proceedings relating to a judge’s unethical campaign practices; but this does not mean that convicts condemned to death are not entitled to complain of bias based upon a judge’s pro-prosecution campaign boasts.
I commend to the reader of this opinion a well-written and pertinent law review article entitled, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases,” by Stephen B. Bright and Patrick J. Keenan. 75 B.U. L. Rev. 759 (1995). The article expresses concern that judges in capital cases may be “too responsive” to a political climate in which judges who wish to remain as judges must “constantly profess their fealty to the death penalty.” Id. at 760 (citations omitted). The authors compare the pressures facing judges who decide capital cases to the kind of danger that “confronted the judges beholden to King George III.” Id. The article concludes by urging that it is time for open and honest discussion of the political pressures on judges who must stand for election.
The integrity, credibility, and legitimacy of the courts are at stake. Judges themselves should lead the discussion by disqualifying themselves, sua sponte from cases in which they recognize that political considerations may keep them from holding the balance “nice, clear and true.” But it may be necessary for lawyers to prompt the discussion by filing motions for recusal in cases in which such pressures are present. The judiciary and the bar have a duty to explain to the public the difference between the representative function of legislative bodies and the adjudicatory function of the courts.
Id. at 834-35 (citation omitted).