November 14, 2005
Electing versus appointing

The Chron returns to the issue of electing judges in Texas, which first came up during the recusal merry-go-round in the DeLay money laundering case. I'm still not convinced that the popular alternative of appointments followed by unopposed retention elections is any better, so let's go through the objections to the current system.

[State Sen. Rodney] Ellis noted that many Texas voters, particularly in urban areas with many judges and long ballots, don't even know who most of their judges are. Harris County has 59 state district judges plus additional appellate and lower-ranking judges.

"It's very difficult to convince voters that we should take away their right to elect someone, even if they don't know who they're voting for," Ellis said.

It seems to me that people would be even less informed about judges running unopposed for a retention election, since those judges would have little incentive to do any campaigning. Why should they, with no opponent? Is there any evidence from states that have this kind of system that it is effective at weeding out subpar jurists? What criteria will the average person have to evaluate a judge's performance under this setup? I'm really at a loss here.

The only circumstance under which I could see a judge losing one of these suckers would be if he or she was very publicly caught doing something naughty, or if he or she became the target of a political party due to a controversial decision rendered (this is the Eileen O'Neill situation that Ginger alluded to last time). In either case, the retention election would almost by definition become a partisan campaign. Given that, I fail to see why it would be an improvement.

The real crux of the issue here, both in DeLay's motion to remove Judge Perkins and Ronnie Earle's subsequent filings to replace Judges Schraub and Jefferson, isn't so much their party affiliation as it is their campaign contributions, both giving and receiving. As I said before, you could solve that instead by simply limiting how much a judge or judicial candidate can give or get. Even if that's a good idea on its own, it's hard to see how imposing such limits will help the voters get to know who they're voting for or against. More campaigning would seem to be the answer to that, and less money will certainly not lead to that.

Really, since DeLay's original contention was that Perkins' contribution history amounted to a conflict of interest on his part, simply clarifying the rules of what constitutes such a thing would have sufficed. I mean, surely Perkins could have been an appointed-and-retained holdover from the Ann Richards era and have made the same contributions to MoveOn, right? If Texas Supreme Court justices were routinely forced to stand down from cases that even peripherally involved their campaign benefactors, I'd bet things would change. Beyond that, I again fail to see how having the appoint-and-retain system would have made a difference.

I'm not saying that the current process we have is the best. I'm a Democrat living in a county with an all-Republican judiciary, after all. I'm just nowhere near convinced that the alternatives presented so far are an improvement. The only way any system can really work properly is with a well-informed and involved electorate. Any ideas on how we can ensure that, I'm all ears.

Posted by Charles Kuffner on November 14, 2005 to Show Business for Ugly People | TrackBack

I think the idea with appointing and retention is the elevation of potential independence from partisan activity and granting of essentially lifetime tenure for good behavior. It would resemble the federal system with the power of impeachment and removal given to the people to be exercised or not periodically at election time.

Also, the campaign contribution was a little more loaded than just generic supporting of democrats. I think it was actually payback for pushing through a judicial pay raise or something like that.

I agree that the DeLay case is a bad launching pad for general judiciary reform. It is a unique case because of his high profile and particular identification with the Republican party. He is one of very few who could make a plausible case that a judge's general aversion to Republicans could unfairly affect the proceedings.

You are right that democracy would work if only people voted diligently in their own interests, but beyond that, anything that would give judges even a little breathing room from the partisan activity that allows them to ascend to the bench, in any system, would be welcome.

Posted by: Doug on November 14, 2005 3:25 PM

Why can't judges be selected the same way we select Houston Council Members? There is no straight ticket apparatus and each name must be looked at individually. If a person wants to find out the party of each candidate thy can do so but keep it off the ballot.

City council and school board are allegedly nonpartisan but they do vote on issues and ideologies whereas a Democrat or a Republican judge, sheriff, tax assessor, county or district clerk should not do their job different depending on if they are Democrat or Republican.

Posted by: Burt Levine on November 14, 2005 4:22 PM

How we pick judges in Texas is a sore spot for me. I've commented here with various levels of snarkiness about it. It is serious business if you believe in a balance of powers.

Texas is one of 8-9 states that has 'partisan' elections as of year 2004. Another 13 or so have 'nonpartisan' judicial elections.

Many states have 'merit based' selection processes using 'nominating commisions' which have lawyers, nonlawyers, politicians, whatever the state law says. At least 15 states have a'pure' merit system/nominating commision for picking all judges. Another 9 states have merit selection as at least a part of the process. Even 9 states who use elections have a merit system for picking mid-term vacancies.

I think most people don't want to elect their judges. It is impossible to know enough, for most people. Hell, I'm a lawyer and I can't keep up with it all.

BTW, Texas already limits the campaign contributions judges get. "the Texas legislature passed the Judicial Campaign Fairness Act in 1995. Under the act, limits on individual contributions to candidates in statewide races range from $5,000 from individual donors to $30,000 from law firms" (same source as above).

"In 1980, Texas became the first state in which the cost of a judicial race exceeded $1 million. Between 1980 and 1986, campaign contributions to candidates in contested appellate court races increased by 250%. The 1988 supreme court elections were the most expensive in Texas history, with twelve candidates for six seats raising $12 million. Between 1992 and 1997, the seven winning candidates for the Texas Supreme Court raised nearly $9.2 million dollars. Of this $9.2 million, more than 40% was contributed by parties or lawyers with cases before the court or by contributors linked to those parties."

"A 1990 poll revealed that 71% of Texans supported electing judges; by 1997 that figure had dropped to 52%."

Excuse the lengthy post.


Posted by: Cynthia Douglass on November 16, 2005 6:11 AM