Retooling Texas' judiciaryChief Justice Wallace Jefferson of the Texas Supreme Court warned the legislature that the U.S. Supreme Court may soon force it to change how state judges are selected.
Thursday, February 12, 2009
Chief Justice Wallace Jefferson warned the Texas Legislature on Wednesday that it might soon have no choice but to radically alter the state's partisan election system for choosing judges. But once again, it looks like it's a federal court that will force the state to deal with this festering problem.
There are two problems with the current election system: Judges must raise money to campaign, and most of it comes from lawyers who practice before them and monied interests likely to face lawsuits. The cost isn't just financial. As Wallace told lawmakers in his State of the Judiciary address, polls show that "more than 80 percent of those questioned believe contributions influence a judge's decision. That's an alarming figure — four out of five."
The second problem is that too many judges get elected or defeated not because of their qualifications, their records or even their rulings, but simply because of their party affiliation. Yet judges and courts are supposed to be politically neutral. It's a system ripe for abuse, and it should be scrapped.
This issue has been batted around for years, but the groups most resistant to change are the political parties themselves.
Change may be coming, Jefferson said, because the U.S. Supreme Court has before it a case, Caperton v. Massey, in which it "will decide whether due process requires the recusal of an elected judge who has benefited from a litigant's campaign expenditures." The court is scheduled to hear oral arguments in this case from West Virginia on March 3.
If the court rules for recusal, the Texas Supreme Court could be put out of business, as could the state's appeals courts and many district judges.
"The status quo is broken," Jefferson said. "It is time for Texas to set a high standard for judicial selection."
Jefferson favors some variation of the merit system, in which judges must get voter approval to keep their offices but do not run against other candidates. At the least, he said, judicial candidates should not be included in straight-ticket voting. The chief justice is right, and the Legislature should act.