Almost every state picks judges by some form of merit selection, often with retention elections. So why does Texas still run judges in partisan elections?
(published as a commentary on November 1, 2018 in the online edition of the Houston Chronicle)
Copyright 2018 (all rights reserved)
Texas is one of only six states that select judges strictly by partisan election, a system that almost guarantees judges will be tainted by the perception of political bias. The other 44 states employ some form or another of a selection process based on merit rather than dependent on the ability of a candidate to win election as the nominee of a given political party. Here is how the majority of states choose their judges:
Four states use a pure merit selection process for either all or some of its judicial offices.
Seven states select judges by appointment only, where the person seeking a judicial position is appointed or nominated by the governor, usually with the approval or concurrence of some board or commission, or one house of the state legislature.
The remaining states have a hybrid merit selection process involving some combination of nonpartisan elections, partisan elections, appointive processes and retention elections, depending on the level of the judicial office to be filled.
In retention elections held in conjunction with a merit selection process ― whether hybrid or pure ― only the name of the judge running for a particular office appears on the ballot and without designation of party affiliation. The judge runs against her “record”, not against other candidates, and receives a “retain” or “do not retain” vote by the voters. Usually, a certain percentage of the total votes cast must be received for the judge to be retained.
It’s important to highlight some important features of the various non-partisan selection systems.
The processes include a judicial nominating commission, often referred to as the judicial selection commission, and a separate body, the judicial evaluation commission. These are nonpartisan and usually consist of some 15 to 20 members each. Their memberships are made up of representatives of the governor, legislature, the legal profession and the public.
In most states, judicial appointments are made by the governor. In two states, those appointments are made by the state’s lawmakers do so. The appointments are preceded by interviews of applicants by the nominating commission. The commission then submits a list of candidates to the governor, who makes the pick.
After judges have been in office for about two years and before their terms expire, the judicial evaluation commission comes into play. That commission interviews the judges and requests input from other judges, lawyers, former jurors and the public concerning the judges’ performance in office. Prior to the scheduled retention election, the commission publishes a report containing the gathered information and issues its recommendation on whether a judge should or shouldn’t be retained. This retention election process is repeated for each term (of whatever specified number of years) a judge is in office.
These sorts of merit selection processes are a better alternative to Texas’ present partisan election method for judges. The Texas legislature should study these alternative methods and consider adopting some form for this state.
In the past, there have been some Austin lawmakers who have explored these options, but reform has yet to gain broad enough support. The public input to representatives could make the difference. After all, states that use merit selection have considerably lessened the harmful role that partisan politics can play in judicial selection.