Earlier today, I watched Chief Justice Wallace Jefferson’s “State of the Judiciary” address to the Texas Legislature (PDF). (( In case you’re curious, no, the Chief did not complete the sentence that forms the title of this post. ))
The address began by recounting the accomplishments of recent years. The Chief Justice spoke about the Commission on Children, Youth, and Families and the task force on emergency preparedness. He addressed the ongoing concerns about a lack of resources for criminal defense and for ensuring that innocents are not wrongfully convicted. And he noted that the national economic downturn was putting pressure on Texas legal services for the poor, asking the Legislature to pitch in.
The Chief Calls for Reforming Judicial Elections
The Chief Justice then turned to his main point — a call for the Legislature to reform how Texas picks judges. The Chief Justice discussed the public’s belief that campaign dollars drive judicial decisions, citing a statistic that 80% of Texans have that view. (( Based on a few conversations I have had with trial lawyers lately, it seems like a distressingly large percentage of the bar may share that view. ))
The Chief also noted that straight-ticket, partisan voting can lead to dramatic turnover in the courts unrelated to the merits of any single candidate. He cited examples in 1994, 2006, and 2008. With regard to his own reelection, he said:
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. 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.
The Chief’s proposal is merit selection with retention elections, but he made clear his view that any step in that direction would help.
[Update: Here is an earlier post about the Chief Justice’s note to his supporters last fall about the need to fix the election and financing system.]
What Happens Next
Senator Robert Duncan, a Republican from Lubbock, introduced a bill today that would put this issue to the voters in the form of a constitutional amendment, asking them to approve a system of appointments and retention elections.
His bill would only apply to appellate judges; district judges would continue to be locally elected. And it would grandfather in current judges, asking them to stand for retention elections when their terms would otherwise expire. (( As I understand the bill, no new appointments would be made until a judge retires, is defeated in a retention election, or otherwise leaves office. ))
I guess I hadn’t really understood what “retention election” means. In Duncan’s bill, it means that appellate judges stand for “retention” every six years, just as they stand for reelection now. The ballots for these up-or-down retention elections would not show party affiliation. But judges would still face voters every six years, presumably with some degree of freedom for interest groups to mobilize and campaign both for and against retention.
With that in mind, I’m still trying to fully understand how this proposal might affect the public’s perception of judicial impartiality. How powerful would it be to rebrand “elections” to “retention elections”?
4 responses so far ↓
1 cy // Feb 12, 2009 at 9:04 am
Isn’t the appointment aspect the main draw of appoint/retention schemes, not so much the 6 year retention election aspect?
2 Don Cruse // Feb 12, 2009 at 9:35 am
I’m not sure which half is the main draw.
We already appoint quite a few judges, after judicial retirements, promotions, and the like. As a point of reference, a majority of the current Texas Supreme Court was originally appointed by the Governor as an interim replacement for another justice who had left. [That’s Chief Justice Jefferson (twice, really, if you include his promotion to Chief Justice), and Justices Brister, Medina, Johnson, and Willett.]
It’s a plus that these justices didn’t have to raise money and campaign to get their seats in the first place. But they have all had to do so at least once to hold their sets in subsequent elections.
3 Roger Hughes // Feb 12, 2009 at 12:17 pm
CJ Jefferson is in good company. Several former Chiefs have advocated such plans, but whatever party is the majority generally thinks partisan elections are just fine. Perhaps the real problem is the drain that contested elections put on the judiciary. Every two or three years the judge has to take a lengthy “vacation” to campaign/raise funds. In short, partisan elections means we do not get full time judges.
Retention elections should be a lot less rigorous as the judge has no “opponent.” There are problems with groups that run “attack ads,” etc. to defeat the incumbent. However, on the whole I think Texans ought to give serious thought to reforms, even if it is only to go to nonpartisan elections.
4 Kyle G // Feb 18, 2009 at 10:13 am
Thanks for the review and analysis, Don. For the past couple years of law school, I’ve kept a watchful eye on the goings-on of the Court. Your blog makes it a lot easier to do so in my (surprisingly) busy 3L year.
I like the idea of retention election ballots making no reference to party affiliation; that is the biggest part of a judicial reform. However, I think—as Roger suggested above—nonpartisan elections in general would be more beneficial to both the respect for the court among the polity and to democracy in general. Perhaps encourage a few more people to look at a judge’s record and qualifications rather than the R/D/L/I next to his name.
However, I’m not so sure that the majority thinks partisan elections are just fine. My talks with non-legal folks (my parents and such) have led me to believe people don’t like partisan election of judges once they think about it. I think the majority just doesn’t think about the issue enough—it lacks the political will to change the status quo despite its dislike of it.