How can we trust our judges when they run in partisan elections?
(published as a commentary in the online edition on October 20 , 2018 and in the print edition on October 21, 2018 of the Houston Chronicle)
Copyright 2018 (all rights reserved)
Harris County voters will soon go to the polls to choose candidates for a large number of public offices. In these few weeks before that Nov. 6 election, Texans should consider whether how we select our judges is the best system ― or even a good one.
Trust in the judicial process is built on the integrity of our courts and how well judges dispense justice. If the trust we put in judges to uphold the rule of law falters, it threatens the very strength of our democracy.
That’s why it’s vital that, as the coming election approaches, we consider how best to ensure that the men and women we place on the bench are the best qualified to perform their duties impartially and with an integrity that includes a rock–solid command of the law. And that is the reason Texans should consider that there are better ways than partisan elections to choose judges.
All but six states, a number that includes Texas, have taken steps to limit the role of politics in the selection of judges. The oft–cited reason for this shift, according to the National Center for State Courts, is a “recognition that an independent judiciary is essential to the maintenance of public trust and confidence in the court system.”
Most other states now use a pure merit selection process to fill all or some of their judicial offices, or they select their judges by a process in which the governor of the state makes the appointment.
Once in office, appointed judges run in retention elections in which the incumbent is unopposed and appears on the ballot without a party affiliation. Voters cast a simple “retain” or “do not retain” vote.
Texas, meanwhile, holds partisan judicial elections in which candidates must first win a primary contest (running typically as a Democrat or as a Republican) to gain their party’s nomination.
They then must win a general election contest (unless there is no opponent from another party to run against) to take a position in a state court.
The question is whether partisan elections afford voters the opportunity to select the most qualified candidates for judicial positions. A look at the sheer number of judicial offices in Harris County for which both Democratic and Republican candidates are running in this November’s general election strongly suggests the answer is “no.”
Information from the Harris County Clerk’s office shows that, except for those who choose a straight party ticket, voters will face nearly 80 judicial contests — from three contested Texas Supreme Court seats near the top of the ballot to the eight precinct-specific races for justice of the peace far, far down the list. In fact, judicial races represent more than half of the total number of offices up for grabs in Harris County. To make an informed choice, the voter is asked to, first, have a basic working knowledge of the functions of the various judicial offices and, then, to know something about each of the judicial candidates.
As for whether this process results in the election of the most qualified person to fill a judicial seat, most other U.S. states have essentially decided that it does not. It’s a concern with which I tend to agree.
It’s time to acknowledge that most voters simply don’t have the time, resources or wherewithal to familiarize themselves with every candidate running for judge. The flaw in Texas’ judicial selection process is that it doesn’t allow voters a fair shot at knowing which candidates are the legal profession’s best and the brightest.
It’s not that Texas does not have some highly capable jurists. But they are there despite our current process, not because of it.
No jurisdiction utilizes a process that guarantees that only the most qualified become judges, but by doing away with partisan elections for judges, Texas would take a large step forward in improving the quality of its judges. If they didn’t have to run for judge, more of this state’s most talented attorneys would seek positions on the bench.
Even when well-qualified lawyers decide to run for judge, it takes an enormous effort for voters to be able to differentiate between the brilliant and the mediocre in these typically low-profile contests. Making it harder still for candidates are ethical standards that preclude their making the kinds of campaign promises that might win voters’ favor. They may not, for example, pledge to make specific rulings on cases that come before them. Even worse, candidates need money to pay to get out their message and boost their name recognition, but the need to fund-raise further muddies professional requirements that judges remain fair and impartial.
A better system for Texas would be one in which voters’ selections were based on contenders’ qualifications, rather than on how much money they have to spend or who their cronies are. It’s a given that attempts at reform will meet resistance. Political operatives and special interests will claim that ending election of judges will disenfranchise voters. But that argument holds little sway when voters hardly have a meaningful vote under the current system.
Let’s be realistic ― no selection process is truly free from politics. But we do have choices. Under a merit selection system, our elected representatives ― likely the governor along with a commission ― would take on the task of screening, nominating and appointing judges. We should insist on at the very least that our Legislature undertake a serious study of this issue.