After a punishing election for Republican judges, state leaders are set to take a long look at Texas’ often-criticized judicial selection system — a partisan election structure that Texas Supreme Court Chief Justice Nathan Hecht has described as “among the very worst methods of judicial selection.”
This summer, Gov. Greg Abbott signed a law creating a commission to study the issue — signaling that the GOP-led Legislature could overhaul the system as soon as 2021. That move comes after Democrats killed a sweeping reform proposal that Abbott had quietly backed.
In Texas, one of just a few states that maintains a system of partisan judicial selection all the way up through its high courts, judges are at the mercy of the political winds. They are required to run as partisans but expected to rule impartially. They are forced to raise money from the same lawyers who will appear before them in court. And in their down-ballot, low-information races, their fates tend to track with the candidates at the top of the ticket.
That means political waves that sweep out of office good and bad, experienced and inexperienced judges alike. And while sweeps are perennial problems for the judiciary, 2018’s elections “set records,” said Tom Phillips, a former Texas Supreme Court chief justice.
Democrats, riding on the coattails of Senate candidate Beto O’Rourke, left the election with majorities on appeals courts where they had previously held zero seats. Republicans were entirely shut out of major urban counties. Voters, largely uninformed about judicial races, differentiated very little between well-funded, experienced candidates and those who had done little but throw their hats in the ring. The judiciary lost hundreds of years of experience.
“Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind,” Hecht warned lawmakers in January, exhorting them to change the system.
But reform is similarly fraught with politics. Voters don’t like having choices taken away from them, even if vanishingly few recognize judicial candidates’ names on the ballot. And any new system has to win the approval of both parties, as a two-thirds majority in each chamber is required for the constitutional amendment needed to change the system.
Texas Republicans dominate the state’s judiciary: All nine members on each of the state’s two high courts are Republicans, as are lower-court judges across much of the state. But that dominance began to wilt after last fall’s elections, particularly on intermediate courts of appeals, where Democrats now hold majorities on 7 of 14 courts.
After scores of Republican judges lost their jobs last fall, Abbott set about appointing many of them back to the bench. He also became more vocal on the issue of judicial selection reform.
Eyebrows went up in February, when he tweeted a Houston Chronicle column criticizing the partisan judicial election system. The governor commented, “We need judges devoted to the constitution and strict application of the law, not to the political winds of the day.”
Advocates began to believe this might be the year to push the issue — or at least to tee it up for a big swing in 2021. It was around that time that a group of would-be reformers — attorneys, former judges and donors — formed a non-profit organization, Citizens for Judicial Excellence in Texas, to push the issue in Austin. One lobbyist registered to represent the group at the Capitol this spring.
With powerful supporters in his ear calling for change, Abbott was also pushing the issue more quietly. In March, he met with state Rep. Brooks Landgraf, a Republican lawyer from Lubbock. Two days later, on the Legislature’s filing deadline, Landgraf proposed a constitutional amendment that would have overhauled the system, centralizing much of the power to pick judges in the governor’s office.
The Landgraf pitch — which ultimately stalled out for a lack of bipartisan support — would have scrapped the partisan judicial election system, replacing it with a multi-step process: gubernatorial appointment, qualifications evaluation by a non-partisan commission, Texas Senate confirmation and retention elections. Since judges tend to win retention elections, barring scandal, the proposal would effectively have allowed Abbott to appoint judges likely to serve for three four-year terms — giving Republican-appointed judges a dozen years in power even as Texas creaks toward the political center.
Landgraf’s proposal carved out small, rural — conservative — counties, where voters would still have had the opportunity to elect judges on partisan ballots, unless they voted to opt into the appointment system.
Landgraf’s pitch, blessed by Abbott, didn’t sit well with Democrats, who demanded to know why the urban centers they and their colleagues represent would be treated differently from Republican strongholds. They feared overhauling the system would mean losing the new class of Democratic judges elected in last year’s sweep — a class that brought unprecedented diversity to the bench. And they questioned whether centralizing that power in Abbott’s office might effectively give the Republicans control over the judiciary for longer than the party can hold the other two branches of government.
In April, a House committee hosted a spirited debate on the bill, then left the pitch pending. Landgraf said he wouldn’t push to advance it without bipartisan support; Democrats cheered its defeat.
First of all, no way is it acceptable to put this power in the hands of the Governor. Putting aside who the governor is now, how does that take the politics out of the process? All it does is incentivize anyone who wants to be a judge to suck up to the Governor. Sure, you could redesign things so that no one person or one party has control over the process, but any way you slice it you are granting this power to a small, unelected, unrepresentative group of people. But if this does get traction, then no way do “small rural counties” get exempted from it. If this is a good system for Harris and Dallas, it’s a good system for Loving and Deaf Smith.
But the bottom line remains that this is only ever an issue when Democrats have a good year at the ballot box. The first time Republicans started talking about changing the partisan election system was in 2008. It then got mostly dropped (except for its most ardent supporters, and I will admit that the likes of Wallace Jefferson and Nathan Hecht continued to bang this drum at every opportunity) in the 2010 to 2014 period, only to be revived in 2016. First they ended straight ticket voting (though not in time for 2018, poor things), and now this. The goal is to install Republican judges, hopefully before Democrats can elect a majority to either of the statewide courts. Come back with a proposal that isn’t primarily about that, and then maybe we can talk. Until then, there’s no reason for any Democratic legislator to support this.