Chief justice tells lawmakers it's time for merit appointments to Texas judiciary

By Marilyn Tennissen | Feb 11, 2009

Wallace Jefferson

AUSTIN – The Texas judiciary will be made stronger if judges are appointed based on merit rather than elected along party lines, the chief justice of the state's high court said Wednesday.

Texas Supreme Court Chief Justice Wallace Jefferson spoke to the Texas 81st Legislature on Feb. 11 for his biennial State of the Judiciary address, and devoted most of the speech to his concern over the public's perception that money in judicial races influences outcomes.

He mentioned that polls on the subject reveal that 80 percent of those questioned believed that judges are biased toward contributors, according to a transcript of Jefferson's address.

"So I ask the question – is our current judicial election system, which fuels the idea that politics and money play into the rule of law, the best way to elect judges in Texas?" Jefferson said. "The status quo is broken. It is time for Texas to set a high standard for judicial selection."

Texas is currently one of only seven states that have partisan judicial elections, he said.

Jefferson quoted retired U.S. Supreme Court Justice Sandra Day O'Connor, who said "If I could do one thing to protect judicial independence in this country, it would be to convince those states that still elect their judges to adopt a merit selection system and - short of that - at least do something to remove the vast sums of money being collected by judicial candidates, usually from litigants who appear before them in the courtroom."

Jefferson pointed out that while Texas adopted the federal method of appointments for a few years after it joined the Union, it soon embraced the Jacksonian premise that citizens have not only the ability, but the right, to vote for those who control their fate in courts of law.

"We have been electing judges since 1876; only recently have those elections transitioned into truly partisan contests," Jefferson, a Republican, said.

"Sadly, we have now become accustomed to judicial races in which the primary determinants of victory are not the flaws of the incumbent or qualities of the challenger, but political affiliation and money," he said.

The chief justice referred to elections in 1994, 2006 and 2008 in which district judges lost their seats due to partisan sweeps in urban counties, and said the state has witnessed similar sweeps in races for appellate and high court judges.

"I would like to claim that voters gave me the honor of continued service due to stellar credentials, but it may just as well have been tied to McCain's success in Texas," Jefferson said. "And this is the point. Justice must be blind – it must be as blind to party affiliation as to the litigant's social or financial status. The rule of law resonates across party lines."

Jefferson said one solution may be eliminating the straight party ticket vote, a move that could give Democratic judges a chance in statewide offices and make Republican judges more competitive in urban district court races.

"So long as we cast straight ticket ballots for judges, the fate of all judges is controlled by the whim of the political tide," he said.

A month from now, Jefferson said, the U.S. Supreme Court will hear argument on the issue of money in judicial elections in Caperton v. Massey.

"The Court will decide whether due process requires the recusal of an elected judge who has benefited from a litigant's campaign expenditures," he said.

Jefferson reminded lawmakers that their work on the issue "can bequeath to all Texans the gift of courts that need labor no longer under the assumption that judicial decrees are encumbered by political or economic motives."

Jefferson said he believes that appointment based on merit and then elections to keep their seats would be the fairest solution.

"A merit system, in which voters later vote the judge up or down, is the best remedy, but I commend any innovation in which the goals are to recruit and retain qualified judges, and to reduce the role of money in judicial campaigns," he said.

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