That horse is dead. Please stop beating it.

Clearly, we have not had enough stories about what a terrible thing the Democratic near-sweep of the local judiciary was.

A bit like the weather, partisan judicial races seem to be something many people complain about but few do anything to change.

But unlike the weather, change is a possibility.

That fact again gained a toehold in political discussions after last week's near-sweep of district court seats in Harris County by Democratic candidates. It was, in the words of American cultural guru Yogi Berra, deja vu all over again.

In 1994, Republicans swept through the local courthouse like a West Texas windstorm, knocking out 19 judges and leaving a single civil court seat in the hands of its Democratic occupant.

Democrats might now say that the resurgence led by Sen. Barack Obama, in which 22 of 26 Republican judicial incumbents lost, was an overdue payback. The Democrats enjoyed a similar resurgence in Dallas County two years ago.

You know, I do remember some Democrats who made the same complaints back in 1994. The reaction they got, in so many words, from the newly empowered Republicans was "Get over it, losers". I don't see why anyone should expect a different response this time around.

Tom Phillips, the former chief justice of the Texas Supreme Court, has long supported an abandonment of partisan judicial races. Elected as a Republican, he even made headway in the Legislature in 2003, as he lobbied for a new selection process in which an independent commission would recommend judicial candidates for appointment based on qualifications, not political affiliation.

He was joined in the crusade by former Texas Attorney General and Supreme Court Chief Justice John Hill, a Democrat.

Phillips said Republican Party bosses killed the bill that proposed these changes, the ultimate irony of which was that Hill's daughter, Martha Hill Jamison, was one of the casualties of Tuesday's Harris County massacre.

[...]

Current Texas Chief Justice Wallace Jefferson, a Republican, took the occasion of the near-sweep in Harris County to denounce partisan judicial races.

"This is a strange way to select those who guard our legal rights," Jefferson said in a prepared statement after the polls closed. "It is time to decide whether partisan election is the best means to ensure judicial competence. It has become clear that in judicial elections, the public (particularly in urban areas) cannot cast informed votes due to the sheer number of candidates on the ballot."

Jefferson, who was re-elected last week, has opposed partisan races for years. He said he will convene a summit of public officials, interest groups and media to explore the issue of judicial selection, with the conclusion presented to the Legislature.

Yeah, well, that and a five spot will get you a fancy caffeinated beverage at Starbucks. Unless the Chief Justice plans to actively lobby the legislature with a bill to implement whatever recommendations his blue ribbon panel comes up with - never mind find actual sponsors to carry said legislation in each chamber - it's the equivalent of an online petition to save the whales. Nobody will pay it any attention beyond whatever initial splash it gets in the media.

And by the way, if we start to decide that the voters can't make informed decisions in certain races, where do we draw the line? Quick, tell me what the Land Commissioner does, and what the major policy differences were between 2006 candidates Jerry Patterson and Valinda Hathcox. Maybe we need more blue ribbon committees to tell us who we should and should not be electing.

GOPers are privately and quietly vowing to do better in two years.

"We won't face those additional straight-ticket voters," one judge who was not up for re-election said, referring to the 47,000-vote advantage the Democrats enjoyed last week among those who punched a single button, the same factor that led to the 1994 purge.

First of all, in case we've forgotten, the reason why there was so much talk about a possible sweep in Harris County wasn't so much the Dallas result from 2006 as it was the fact that the average Democratic judicial candidate in 2006 got over 48% of the vote, after getting a bit more than 46% in 2004. That was with the Dems having an 8000-vote straight-ticket advantage in 2006, after getting waxed by a 45,000 vote margin in 2004. The demographic trends favor the Democrats, and it's not going to be any better for the GOP in two years' time.

Consider this: In 2004, there were about a million votes cast in each contested judicial race. In 2008, it was about 1.1 million, or 100,000 votes more. Here's how the average candidate did in each year:

2004 avg GOP 536,000

2004 avg Dem 470,000


2008 avg GOP 540,000

2008 avg Dem 558,000

The average Republican got 4000 more votes. The average Democrat gained 88,000 votes. You do the math. And if you're wondering about the off years, here's 2002 versus 2006:

2002 avg GOP 330,500

2002 avg Dem 272,000


2006 avg GOP 286,000

2006 avg Dem 262,000

There were 64,000 fewer votes cast in 2006 than in 2002. Republican candidates lost 54,000 votes, the Dems dropped 10,000. I fully expect the turnout in 2010, led by what should be a marquee Governor's race and perhaps including an open Senate seat race, to be much better than 2006, and at least somewhat better than 2002. That should give the GOP some hope that maybe this time they can out-rally the Dems. And they may be right, there may be one more strong Republican showing left in the county. But the trends are still against them.

Republican Joan Huffman, a former criminal courts judge who is in a runoff for a state Senate seat, said in a debate with Democratic opponent Chris Bell last week that she favors the current system. She argued it is more open as it is.

Bell had this to say about the system:

"The party in power is usually loath to change the way we select judges.

"And I think if the Republican Party had been serious about wanting to engage in some type of reform in the area of judicial selection, they controlled the state Senate and they controlled the state House and they controlled all the statewide offices, and so that was the time to move in that direction."

What he said. And for what I hope (again!) will be the last thing I'll feel compelled to say about this issue, here's another data point to compare from 2004, when Republicans won all the judicial races and all was apparently right with the universe:

2004 hi GOP  545,012 54.21%

2004 lo Dem  460,283 45.79%

diff          84,927  8.42%


2004 lo GOP  524,198 52.08%

2004 hi Dem  482,385 47.92%

diff          41,813  4.16%

variance      43,114  4.26%

2008 hi GOP  564,023 51.44%

2008 lo Dem  532,383 48.56%

diff          31,640  2.88%

2008 lo GOP  522,687 47.54%

2008 hi Dem  576,834 52.46%

diff         -54,147 -4.92%

variance      85,787  7.90%

In 2004, when Republicans had a 45,000 vote advantage in straight-ticket ballots, the variance in the spread from the high scoring Republican and the low scoring Democrat to the low GOPer and the high Dem was 41,813 votes, or 4.26 percentage points. In 2008, when the Dems had a 47,000 vote advantage in straight-ticket ballots, the same variance was more than twice as great, with nearly an eight point range in percentages. Yet it was this year, with the much broader range of outcomes and the first sighting of a bipartisan judiciary in over a decade, that has caused so much public hand-wringing. If someone can posit a reason for that beyond Republican sour grapes over losing, I'd like to hear it.

UPDATE: Clay Robison agrees that there will not be a serious effort to change the judicial election process.

Posted by Charles Kuffner on November 10, 2008 to Election 2008