Most of us are proud we voted, yet most of us abdicated our voting power when it came to electing judges. Our trial and appellate judges oversee our Fourth, Fifth, Sixth, Seventh and Eighth Amendment rights daily, but most Harris County voters simply hit a straight-party ballot and let someone else decide in judicial races.
Yes, the parties provide some good judicial candidates. But in trying to fill out the long ballot of judges, they have offered some real losers over the years, too. The ballot always contains some mediocre lawyers who like the looks of a county pension and some who will make actively bad judges. By not paying attention, Harris County voters have, at times, elected family law judges who refuse to show up in court, irreparably harming couples and children. They’ve elected criminal court judges who treat people of color differently. They’ve elected juvenile court judges who do harm to the most vulnerable of us, and they’ve elected appellate judges who simply are not up to the task.
It is heartbreaking for those who know which judges are good, or even great, only to see them swept out of office by blind party voting. We lost many great jurists this election. Maybe their replacements will be great, too, but at least some of them won’t.
Thanks to recent legislation, straight-party voting won’t be available when our judges are up for election in two years. But if we keep judges on a partisan ballot, people are still likely to use party as a voting crutch when they would likely do less harm by abstaining. Scholars who have studied judicial elections note that party affiliation is the primary factor in most people’s choices, followed by choosing a familiar sounding name. One Dallas judge believes he got a boost at the ballot box because his name sounds like a popular whiskey.
Friends say they voted straight party to send a message to the president or someone else in high office. But for years, straight-ticket voters have been sending powerful and uncaring messages to the unlucky litigants who wind up in front of one of the judges who is ill-equipped for the bench.
Author Mary Flood is a friend and a person of wisdom, but I do not agree with her proposal. I’ve addressed this a bunch of times, and my position hasn’t changed. Making judicial elections non-partisan removes information from voters, while incentivizing groups with a direct stake in the outcome of these elections, from plaintiffs’ lawyers to bail bondspeople to evildoers like Empower Texans to influence the vote, by which I mean “spend a lot more money than they do now to get judges they like elected”. You may say that it would be all right if the less-informed voters choose not to vote in these elections. I will say that encouraging people to not vote doesn’t sound like democracy to me.
If we must get rid of partisan elections, the only option that makes sense to me is an appointment system. If we’re going to go down that road, we’d damn well better engineer it in a way that doesn’t grant an excessive amount of power to any individuals or groups, does promote merit and diversity, and still allows for a way to oust someone who becomes a problem. I get that there are problems with the system we have. I’m sorry that some good judges will leave the bench, even as I voted against them. But until those who have been airing their complaints about this system come forward with a better one, I will continue to oppose any changes.