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Update on the “Judicial Selection Committee”

Yes, this is a thing.

All but one member of the new Texas Commission on Judicial Selection indicated at the group’s first meeting Thursday that they believe partisanship is problematic in the state’s method of selecting judges.

Only Sen. Joan Huffman, R-Houston, said she’s unconvinced that partisan election of judges must go. But the senator added she planned to keep an open mind as the Judicial Selection Commission this year completes its task to study a number of selection methods, and report back to the Texas Legislature with recommendations for reform.
Much of the commission’s first meeting in the Texas Supreme Court building in Austin was devoted to spelling out the problems with the current system.

“You can’t solve a problem unless you know what the problem really is,” said Chairman David Beck, partner in Beck Redden in Houston.

Beck said Texas is one of only six states in the nation that uses partisan elections for judges.

“We are losing good, experienced judges,” he said. “I don’t care if they are Republicans or Democrats. It has nothing to do with their performance. It depends on the issues at the top of the ticket.

[…]

A candidate who can raise the most money from wealthy people and corporations, to put ads on TV, has the best shot at winning the bench in urban areas where voters do not know the judicial candidates, added Former Texas Supreme Court Chief Justice Wallace Jefferson. Instead, Jefferson said the emphasis in judicial elections should be on the merit of the candidates.

But Jefferson indicated that the election of judges is a good thing, too, because a candidate must travel the state and speak with attorneys and people about their concerns.

“I was able to bring innovation from all around the state to the judicial system because there were good ideas,” said Jefferson.

Another plus: The 2018 elections brought a racially diverse group of candidates into office, he said.

See here for the background. You know how I feel about this, so I’ll keep my comments brief. One, I will remind David Beck and everyone else who has ever utter a lamentation about the “good, experienced judges” that we lose via the partisan election process that we gained them in the first place via the partisan election process. Second, I would challenge Wallace Jefferson to show me the data on that claim about raising money for TV ads to win judicial elections. For one thing, very few judicial candidates actually raise that much money, and for two, even fewer of them run TV ads. That said, it’s quite interesting to see Jefferson, who has been an advocate for something other than the partisan election of judges for a long time to admit that the partisan elections we had in 2018 did an awful lot to diversify the judiciary in Texas. How much progress do you think we’d have made on that score in a judicial appointment system?

I mean look, I don’t want to claim that the partisan elections process for judges is the best system. I get the concerns about it, and like anything it’s worth considering how it could be improved. Really, my main problem is that the arguments put forward by proponents of change are such obvious tripe that I feel compelled to point it out each time. It’s wishcasting plus unsupported claims, and on top of it all no one has yet proposed an actual alternate system that can be objectively shown to be better than the one we have, and by “better” I don’t mean “would allow Republicans to regain or hold onto power in places where they have lost it or are losing it”. Everyone seems to take it on faith that Something Else would be better. I say show me the evidence. That in theory is what the Judicial Selection Commission is intended to do. I’ll believe it when I see it. Grits for Breakfast has more.

UPDATE: Well, there’s this:

Texas Lt. Gov. Dan Patrick is pushing back against the thought of eliminating partisanship from judicial elections.

In a statement Friday, one day after the new Texas Commission on Judicial Selection met for the first time and identified partisan judicial elections as a major problem, Patrick issued a statement saying he was surprised it appeared the commission supported eliminating partisanship before it began hearings.

“I expect the members to have an open mind on every issue—including the partisan election of judges—with the single goal of making sure Texas continues to maintain one of the best judicial systems in the country,” Patrick said. “Texans feel strongly about voting for their judges. The commission will need to make a compelling argument to the people and legislators to change the current system. I do not believe that support exists today.”

Having one’s viewpoint affirmed by Dan Patrick is a heck of a thing. Be that as it may, his opinion will carry a bit more weight than mine. I don’t know if this means he’s actually not on board with ending the partisan election of judges, which means he’s not on the same page as Greg Abbott, or just telling the committee to not give the game away before it even starts. Either way, very interesting.

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4 Comments

  1. mollusk says:

    This comes up from time to time, particularly when there’s a partisan sea change. It’s an idea that suddenly becomes popular with whoever’s ox just got gored.

  2. N.M. Horwitz says:

    David Beck is a very good lawyer and is a principal of a very good law firm, which charges upwards of $1000/hour. Their clients are almost all extremely large corporations engaged in complex business matters. Conservative, business-friendly, defendant-friendly judges are always going to be much better for the David Becks of the world.

    I will freely concede that — as a plaintiff’s attorney — I want different judges. I want judges friendly to my clients, the little guys, and the plaintiffs of the world.

    And I think the public is bright enough to understand that distinction and vote accordingly in a general election for the same. It only seems to be the Fancy Law Firms that pretend their way is the Only Way. When the deck is stacked in your favor, equality can look like bias.

  3. Steve Houston says:

    “And I think the public is bright enough to understand that distinction and vote accordingly in a general election for the same.” Except we have watched so many voters elect “conservative, business-friendly, defendant-friendly judges” for a long time now. What do you think has changed?

  4. Based on my background in political science, I would submit that the problem with the Texas judiciary is structural, and would require a more fundamental constitutional reform to fix it than what is being proposed and contemplated.

    But what are the chances that this will even be discussed, not to mention considered or recommended, given the composition of the judicial selection commission, and its political genesis?

    Just take a look at the “Citizen” Members: 2 former Republican SCOTX chiefs (one with well-propagated views on the subject matter of judicial elections), 1 former Republican COA justice, and 3 attorneys).

    Mr. Charles “Chip” Babcock, IV, Attorney
    Hon. Martha Hill Jamison, (Ret.)
    Hon. Wallace Jefferson, (Ret.)
    Ms. Lynne Liberato, Attorney
    Mr. David Oliveira, Attorney
    Hon. Thomas Phillips, (Ret.)

    https://www.txcourts.gov/tcjs/members/

    Nobody from the public at large, not even a law professor, no political scientist with expertise on different judicial selection systems and their effects based on cross-jurisdictional (comparative) studies. There is big scholarly literature on this.

    The structural problem in a nutshell is this: Individual at-large election & lack of constraint on the (ab)use of monopoly power

    At the supreme court level, each member is voted on by the statewide electorate, with the result that as long as the state as a whole consistently votes for one party, there is no representation of a minority party at all. The obvious alternative would be to elect one member each from nine appellate districts (consolidated down from the 13(14) we have now) or to enlarge the court to match the number of appellate district and have each member elected from one.

    Another option would be to divide the state into 9 electoral districts of equal population size for the purpose of supreme court elections, one for each position on the 9-member body. That would create some degree of political/ideological diversity on the SCOTX—diversity that is now completely lacking– because the voters in different parts of Texas have different partisan leanings in the aggregate distribution. Stated differently, there would be different majorities in different parts of the state, and those would then be represented in the composition of the court of last resort.

    As it is, Republicans don’t even have to gerrymander to control the SCOTX because they already have a lock on the high court by “virtue” of at-large election of each individual member. You might say, the court is already stacked: 9:0 in favor of the majority party at the state level, currently the GOP.

    Based on our existing system, the at-large election of each member produces and perpetuates 100% one-party control collectively even if the Republican statewide vote is only 55% or 60%. This creates a system of judicial absolutism because the nine Republican jurists are free to do what they want (short of being overturned by the SCOTUS, which does not have jurisdiction in most cases for lack of a federal question). And as for those federal constitutional issues where the SCOTUS is more liberal than the GOP in Texas (abortion, same-sex marriage), Governor Abbott has been screening applicants for judicial vacancies by asking candidates on his job questionnaire which SCOTUS decision they DISAGREE with.

    The chances that the Republicans will willingly give up ANY of ALL that power they now possess is infinitesimal. The unbridled power at issue here is the power to make (and remake) binding case law for all courts of the state in civil matters.

    Most cases don’t pose constitutional issues. This is not just a matter of “qualifications” of the decisionmakers; it is — much rather — a matter of norm-setting–a form of policymaking–that involves the exercise of tremendous power. Power, for example, to exempt an entire industry from the common-law civil liability system by turning the historical limited-scope judicial proceedings privilege into a status-based attorney immunity. Flash your bar car and be off the hook for fraud and other malfeasance. See Youngkin v. Hines (Tex. 2018)

    BUBBLE JURIS(MAL)PRUDENCE

    So what we have at the highest level is partisan hegemony in an echo chamber. That’s the Republicans’ idea of nonpartisanship: No other party. No dissent. Republican judges are not ideological. They are just good conservatives. And that’s how it ought to be and stay.

    As it is, the composition of the SCOTX differs radically from the SCOTUS: There is no liberal/conservative divide on the Texas high court; no moderate swing votes in a middle to appeal to. There is no constraint on the crass use and abuse of judicial power to announce the content of the common law “as we find it”; little restraint on the de facto exercise of power to take the tooth out of statutes passed for the benefit of life-and-blood denizens of the state and the interests of the public (such as WBA, TCHRA, TTCA, PIA). Our Supremes see fit to overrule decades of COA precedents even when there is no split, as they recently did in Agar v. Electrocircuits (2019), and to change the rules of procedure to produce a favored outcome in a particular case without bothering with the rule-revision process. See Lujan v. Navistar (Tex. 2018) (adding the sham affidavit doctrine to the Texas summary judgment rule by fiat)(Opinion by Blacklock).

    Seasoned appellate practitioners understand they have to invoke the ghost of Antonin Scalia if they want to be favorably received, and engage in “court-centered” advocacy; — the euphemism of choice for the requisite sycophantism in this ideologically pure venue. Not to mention that our Supremes—who also promulgate the rules of practice and procedure–continue to require those appearing before them to pray to them. See TRAP 38.1 (Requisites of brief); 38.1(j)(“Prayer”).

    Second structural problem: There are no term limits and (apparently) no revolving-door ethics rules. That creates a situation where justices get to overrule precedents they don’t like, make new precedent, then self-referentially cite their custom-fashioned holding as legal authority years in and out, either on the court of before it. In 2006, Nathan Hecht gave us a Republican reincarnation of the maxim that the King can do no wrong, and that contracts cannot be enforced against the state and its subdivisions. The infamouns Tooke v. City of Mexia decision. Innumerable Texans have since been denied the right to litigate their claims regardless of merit. Green, Jefferson, Wainwright, Brister, Medina all joined in Hecht’s government immunization project. Phil Johnson dissented then, but wrote separately shortly before resigning to defend his colleagues’ asserted right to define to contours of sovereign immunity – a judge-made common-law doctrine that in effect nullifies the open courts provision. So much for the defense of the constitution, which—you would think—would trump the English King’s self-serving prerogatives perpetuated judicially through the English common law, imported into Texas long after 1776.

    And statutes enacted by the Texas Lege don’t necessarily fare better. To take just one recent example: Texas Government Code § 82.065(a) requires a contingent fee agreement for legal services to be in writing and signed by attorney and client, but the SCOTX say fit allow Texas attorneys to circumvent the condition imposed by statute by blessing recovery on the alternative theory of quantum meruit; again a judge-made common-law doctrine. WBJ argued the case to his former colleagues for the claimant-law firm, and secured a reversal and remand so his attorney/law firm client could retry his case even though he had not complied with the relevant consumer-protection statute which, as a prolific litigator, he was surely familiar with. See Hill v. Shamoun & Norman (Tex. 2018).

    It has become the established custom for former SCOTX justices in private practice to return to the court as advocates of private interests. If you see the name of a former supreme court justice on the docket for one of the parties in a SCOTX case, you know it’s a big one. Not to mention when you have one on each side. But who can afford to hire a former supreme court justice to do their bidding in the court of last resort? Or a future one, for that matter, such as Jane Bland, who signed the petition in Apache v. Davis that is now before Court of which she has since become a member. Many do without such help from the Republican revolving-door system, and most of those petitioners are doomed from the get-go. They roll down the conveyor belt and go into the trash bin by default.

    PARTISAN POWER MAXIMIZATION WITHIN THE EXTANT SYSTEM

    Third, and moving beyond the structural/institutional problem, the Republicans further manipulate the existing system that governs the “staffing” of the appellate courts even though it already works in their favor.

    When incumbent Republican jurists are ready to move on, they resign early (with no compunction about breaching their “contract” with the people that elected them to six-year terms) to give the Republican Governor a chance to appoint a vetted replacement to the vacancy thus manufactured. Phil Johnson is only the most recent example. The appointee then runs as an incumbent. KEEP Justice Busby! Only two current members of the court were not originally appointed: Green and Devine, the latter having defeated David Medina in the Republican primary with tea party support. Two of the last three appointees (Busby and Bland) are previously-ousted Republican COA justices from Houston. The third one (Blacklock) comes straight from Abbott’s inner circle. So, what we have here is Republican self-perpetuation, and a pattern by Greg Abbott to reverse the verdict of the voters when they reject Republicans at the polls. Antidemocratic as much as anti-Democrats.

    COA JUSTICES AND METROPOLITAN APPELLATE DISTRICTS

    The Democrats’ sweep in 2018 had the salutary effect of ending Republican hegemony on the COAs in Houston and Dallas, and replacing it with mixed-member composition, but only because all Republican incumbents were not up for reelection at the same time. Even CJ Radack has recently started penning dissents.

    If diversity in political leanings and associated decisional proclivities is desirable so as to promote fairness and justice, conditions are more favorable now. That said, the intermediate COAs are subject to the same problem as the high court. The largest ones could turn all-Democrat soon, and then we will have traded Republican hegemony (and the associated jurisprudential excesses) for Democratic hegemony, and the pendulum will likely swing the other way. If the state as whole remains red, the all-Republican supreme court will likely get busier undoing what was done below. The Thirteenth COA in border-adjacent “judicial hellhole territory” already has the highest reversal rate.

    THE BASIC PROBLEM: UNRESTRAINED JUDICIAL MAJORITARIANISM

    The problem with the current setup for judicial elections in Texas is that it favors the majority party, whichever that party is. The obvious solution would not consist in tinkering with judicial nomination/selection of candidates, but would require fundamental electoral reform. But that won’t happen as long as there is no support for the idea that there should be checks and balance within our very partisan elective judiciary, and as long as Republicans’ idea of a non-partisan judiciary is coextensive with complete control of the third branch by fellow Republicans to the exclusion of Democrats and others deemed unsuitable and unqualified.

    Wolfgang P. Hirczy de Mino, PhD (Political Science, Univ. of Houston, 1992)

    COMMENTATOR’S DISCLOSURE: WPHDM submitted amicus curia briefs in most of the cases mentioned here as examples.

    See relatedly:

    Hirczy de Mino, Wolfgang, The Effect of the 2018 Elections on the Texas Courts of Appeals: Better Demographic Representation, Greater Partisan Balance, and More Complex Decision-Making Dynamics (December 17, 2019). Available at SSRN: https://ssrn.com/abstract=3505700 or http://dx.doi.org/10.2139/ssrn.3505700
    Comments and corrections welcome. Contact email on paper.

    Also see:

    86(R) HB 3040 – Enrolled version – Bill Text (AN ACT relating to an interim study by the Texas Commission on Judicial Selection regarding the method by which certain trial and appellate judges are selected.)

    Angela Morris. Forget the ‘R’ and ‘D’: Commission Wants No More Politics in Selecting Texas Judges. TEXAS LAWYER (Jan. 9, 2020)

    Angela Morris. Photos: Meet Group Working to Remove Politics From Texas Judicial Elections. TEXAS LAWYER (Oct. 20, 2019) (“The harm of partisan sweeps that eliminate qualified jurists was one reason that the Texans for Lawsuit Reform Foundation came out against partisan judge elections in a recent paper.”)