Should Texas judges be appointed instead of elected?Huge political hurdles impede efforts to end judicial elections in Texas.
By Chuck Lindell, AMERICAN-STATESMAN STAFF
April 20, 2009
Texas is one of only seven states to select its judges in partisan political elections, and you'd be hard-pressed to find anybody defending the system as ideal.
Good-government groups are appalled that judges accept campaign contributions from lawyers and businesses that appear in their courts.
Judges complain about the indignity of asking for those contributions. Lawyers aren't happy about being pressured to give. And ordinary citizens, polls show, wonder if Texas justice is being sold to the highest bidder.
"I think that is an irrational system," said Wallace Jefferson, chief justice of the Texas Supreme Court, where campaigns can easily top $1 million. "It just doesn't make logical sense."
But don't expect quick results, or perhaps any results, this legislative session for a familiar idea: replacing judicial elections with a system of appointed judges.
Similar efforts have flared and died since at least the 1960s. Opposing sides are now so entrenched and the legal hurdles so high that credible experts doubt Texas can ever restructure its judicial election system.
One politician who has been trying for 16 years is Sen. Robert Duncan, R-Lubbock. In response to earlier criticism, Duncan scaled down this session's bill to create a system of appointed judges — and stirred up a new crop of detractors.
An exasperated Duncan lashed out at a recent hearing.
"We're never going to get this perfect, because there is no perfect solution, but at some point everyone has to lay down their own personal bias ... and say we have to make this work better," he said. "Doing nothing preserves what is the worst system in the country."
But changing the way Texans elect judges would require a constitutional amendment approved by two-thirds of the Senate and the House, magnifying the impact of interest groups that can scuttle change by stoking opposition from a small number of legislators.
Even if it clears that hurdle, an amendment must be approved by a majority of voters, which may prove to be the ultimate bar to an appointed judiciary. Voters have been electing Texas judges since the 1870s, and polls show about two-thirds of today's voters want that to continue, despite concerns about the influence of political contributions.
"Texans have a fondness for electing people to office," said Anthony Champagne, a University of Texas at Dallas political science professor and co-author of "Judicial Politics in Texas: Partisanship, Money, and Politics in State Courts."
Champagne said he can already imagine the ad blitz about how "they" are trying to take away Texans' right to vote. "That would kind of kill the issue right there," he said.
Debating 'who picks the pickers'
Chief Justice Jefferson kick-started the latest reform effort with a passionate February speech to the Legislature citing the drawbacks of judicial elections: Too often, party affiliation trumps a candidate's qualifications, and the influence of campaign money destroys public confidence in both justice and the judges who administer it.
Jefferson says he wants the state's judges to be appointed to their jobs, standing for election periodically so voters can decide to keep them or toss them from office. No party affiliation would appear on the ballot, and judges who lose election would be replaced by appointment.
Judges operating under similar "merit selection" systems in other states don't carry the baggage of party affiliation and need to raise far less campaign money than their Texas counterparts, said Jefferson, who leaves it to legislators to fill in the details.
Enter Duncan, who for years has hustled Senate votes to create a politically and geographically diverse commission that would vet judicial candidates for their legal skill and send a slate to the governor, who would make the final choice.
Opponents, however, have focused on the prospect that one side — Republicans or Democrats, business or consumers, plaintiff or defense lawyers — would gain the upper hand on the commission and skew the judiciary and their decisions.
"The debate is always over who picks the pickers," Duncan said.
This session, Duncan scrapped the commission idea. His latest proposal would have the governor appoint the state's 80 appellate court judges, nine Supreme Court justices and nine Court of Criminal Appeals judges. After serving their first term, appointees would:
• Stand for election as they do today — running in their party's primary, and if they win, facing the other parties' nominees in November.
• Remain on the bench for future terms by winning voter approval in nonpartisan retention elections.
Duncan said he sees this hybrid approach as a best-of-all-worlds solution. The first election answers criticism that qualified candidates could not seek office under an appointment system, and subsequent retentionelections would remove party labels and cost candidates far less money than partisan campaigns.
"Let's let judges be judges," Duncan said. "Let's not force them to be politicians, to raise money from folks who will be in their court and then criticize them for doing that."
'Better not to change'
But the new ideas brought a new round of critics.
Democrats were leery of ceding so many judicial appointments to governors in a predominantly Republican state. The Texas Trial Lawyers Association, a reliably Democratic interest group representing plaintiffs lawyers, wanted greater checks and balances on gubernatorial appointment power.
Texans for Public Justice, a liberal advocacy group and a proponent of merit selection, said Duncan's proposal does not ensure that judges would be chosen by merit and would not save candidates from having to raise campaign money or court special interests.
Added to this are the traditional voices against an appointed judiciary — the state's Republican and Democratic parties, as well as some lawyer groups and African American and Hispanic rights organizations, Champagne said.
"If I were to handicap it, I would say that you are not going to get change in Texas," said Champagne, who has been studying judicial elections for 25 years. "Often, the sense is it's better not to change than to go into an unknown situation where your interests might get hurt."
Rep. Todd Hunter, R-Corpus Christi, recently got an earful during a hearing on his bill to create retention elections for appellate judges. Hunter decided to work with the factions to craft an acceptable measure, but he downplayed chances of success this session, which has six weeks to go.
"There's not a lot of time," he said. "So I'm not going to hurry anything without good public input."
Though Duncan said he thinks most Texans agree with his premise — judges should focus on the law, not politics — he too is unsure of the prospects for his own bills.
"The external pressures haven't weighed in on this yet, and they will," he said.