By Mike Thompson Sr.
Texans have held a right to elect their judiciary for 150 years. Every few years, the legal elites and media start testing if now is the time they can take away this right. Now is another of those times. A group of politicians, the Texas Commission on Judicial Selection is meeting and again considering this issue and will again recommend that the right to elect partisan judges is too much freedom to grant non law licensed folks.
Opinion pieces, like a recent one that ran in the Austin American Statesman “It’s time to change the way Texans pick appellate judges” suggest our system is broken, in part, because voters know little about judicial candidates and “voters often select judges because of their political affiliation”. They urge that is a bad thing with the system. If so, democracy itself is at issue because that charge could be leveled about every partisan election. In truth, party affiliation is a pretty handy signpost about a candidate’s judicial philosophy. As I wrote several weeks ago in these pages, different judicial philosophy is usually held by Republicans and Democrats. The voters should know that and have a say in who sits on the state bench.
Retention system doesn’t create a “better” judiciary
Those seeking change to the way Texas picks its judges suggests that the appointment and retention system of selecting judges will create a better judiciary. To fairly consider this, thought must be given to what makes a good judge. Most seem to agree that a good judge should be independent. Most would also agree that they need to also be accountable to citizens so as to not be arbitrary in decision-making.
To make this calculation of whether or not a changed system like the ones reformers seek will give us a better judiciary, we can draw on the experience of many other states as well as the federal system which has never settled for an elected judiciary. There is a fair amount of research that has been done on the strengths of each system. Before embarking on any change that teaching should be compared to the Texas model.
I believe that Texas judges, by and large, are as well qualified as those from states with retention and selection systems or their federal sisters. Any judiciary would be proud to have judges of the quality of Joe Greenhill, Bob Calvert or Priscilla Owen. All were elected or re-elected to the Texas bench in contested partisan elections. Some of those judges went on to the federal bench.
Social Scientists have studied the merit system in other states. One such study concluded that “the quality of judges in a merit-selection system are no better than those elected by voters…” p. 4 The Case for Partisan Judicial Elections, Judicial Selection White Papers, Michael Debow. Those researchers further concluded that: “Much research has been conducted, looking for evidence that the Missouri plan judges are systematically better qualified than elected judges. No evidence of this sort has been found”.
Are judges picked by merit selection more independent than the Texas judiciary? In the classic study of the Missouri merit selection plan, researchers determined that the Plaintiff bar and the Defense bar were about equally successful in obtaining seats for judges they supported for appointment. A result roughly similar to partisan elections. However, the competition in a merit selection system goes on underground and is beyond popular control. That is to say the competition continues, but the people no longer have a meaningful role. This is one reason former Texas State Bar President Broadus Spivey has been an opponent of any move away from partisan election of judges.
Politics is retained in the retention system just as it exists in the system of partisan elections, but the people lose any meaningful right to vote
One frequent argument in favor of the merit retention system is that the selection of judges will be less political. The research of those who have studied the system in such states have come to a different conclusion. As common sense would suggest, those with a significant stake in the judiciary will continue to work to promote their interests no matter the formula to pick judges. The lawyers have a way of making themselves felt, regardless of how what process is employed. The federal system hardly demonstrates an absence of politics in the selection of judges.
In the retention system, very few judges who stand for retention are ever defeated. That number is smaller than in partisan election systems. Furthermore, retention elections traditionally have far lower turnout than partisan judicial elections. Despite utopian promises, the fact is politics is not removed from the merit selection process, rather the right of the people to participate in the selection is removed. It is quite likely a return to smoke filled backrooms where the selection is worked out by insiders.
Judicial partisan elections have several advantages over their alternatives. Not least of which is that they provide an additional, significant measure of self-government to voters. The book, In Defense of Judicial Elections by Professors’ Chris Bonneau and Melinda Gann Hall suggests that judicial elections enhance the quality of democracy and creating a link between citizens and the judiciary. This link is important to confirm that judges are not superior and apart from the citizens they serve.
Thomas Jefferson addressed these issued and noted that “The exemption of the judges from [election] is quite dangerous enough. I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it from them, but to inform their discretion by education.” Jefferson was right, the people’s right to participate in the election of judges should be preserved.
Mike Thompson Sr.
Retired El Paso Attorney and Family Law Judge