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Partisan judicial elections are hurting Texas

March 10, 2003, Dallas Morning News

The most critical issue for Texas' courts is how we elect judges. Our partisan, high-dollar judicial selection system has diminished public confidence in our courts, damaged our reputation throughout the country and around the world and discouraged able lawyers from pursuing a judicial career.

I urge our state legislators to submit a constitutional amendment at the earliest possible date to allow Texans to decide whether they would prefer another election method.

When Texas adopted judicial elections in 1850, the entire state had only three supreme and 11 district judges. The judicial ballot was short: Citizens voted in one or perhaps 2 races. Candidates campaigned through stump speeches and handbills, with a few kegs of whiskey for thirsty voters being the principal expense. Reformers believed then that judges chosen by the people would be more independent, more qualified and more accountable.

Today, long ballots, partisan sweeps and big-money campaigns have completely negated the original intent of judicial elections. Only three other states Alabama, Louisiana and West Virginia still choose all of their trial and appellate judges, both initially and for re-election, in partisan contested elections.

Most other states have concluded that the goals of an independent, qualified and accountable judiciary can be better achieved by treating judicial races differently. Many states have chosen retention elections, which require every judge to run on a nonpartisan "yes" or "no" ballot at the end of each term.

Under legislation filed last week with bipartisan sponsorship, all current Supreme Court, Court of Criminal Appeals, Court of Appeals and District Court justices and judges would stand for retention elections at the end of their terms. Whenever a vacancy occurred, the governor would appoint a successor. Although the new judge would take office immediately, his or her appointment would be subject to Senate confirmation before the first retention election. The Senate also could require additional approval by the Nominations Committee for appointments made between sessions.

Retention elections would preserve most of the good of electing judges while alleviating most of the bad.

Far from diluting the democratic process, retention elections actually would give most voters more control over their judges than they now enjoy. Today, most Texas judicial races are unopposed; therefore, most incumbents need only one vote to be re-elected. Almost half of all Texas judges initially are appointed, anyway either to a new bench or to fill an unexpired term.

Many judges, particularly in less populated counties, never have had an opponent in their judicial careers. With retention elections, on the other hand, every judge would face his or her employers, the people, at regular intervals. If judges who know that voters can remove them are more patient, punctual and efficient, then why not ensure that all 516 state judges are subject to a meaningful vote?

Because retention elections are nonpartisan, they would encourage a more deliberate vote. Since 1980, nearly a third of all state judges who were opposed in a general election were defeated. Most of those defeats, I submit, were more about party label than competence or qualifications.
While justice should be blind, voting shouldn't be.

Retention elections also would minimize the need for most judges to amass million-dollar war chests and hire image consultants. With very few exceptions, retention elections in other states more closely resemble the rather genteel canvasses of the 1850s than the raucous Texas Supreme Court elections of the 1980s and 1990s.

The damage to public confidence caused by those nasty contests is hard to calculate, but a 1998 survey revealed that 83 percent of Texans believed that Texas judicial decisions were "very" or "fairly" significantly influenced by campaign contributions. Perhaps worse, from watching 60 Minutes or Frontline or reading The New York Times, The Financial Times or USA Today, millions of people worldwide now believe that politics has compromised the rule of law in Texas courts.

Last year, a lawyer stopped me on the street to share a problem: His law firm couldn't decide whom to support in a high-profile race between two district judges for a seat on our court. He very much wanted to support the winner, complaining that his firm really would be hurt if it guessed wrong.

I was stunned. Weren't both candidates able jurists who put principle above politics? "Yes," he readily agreed. Then, why not just support the better candidate, I inquired. "Well," he explained, "our firm wants our clients to believe that we are players. If we back a loser, we will have no credibility."

This year, our legislators can offer the people of Texas a judiciary where no client will have to ask his lawyer, "How are you with the judge?" Our lawmakers can end the years of debate on this issue by letting the people decide, once and for all, what kind of election system they prefer. We have talked enough. As William Shakespeare put it, "Action is eloquence."

(source: Opinion, Thomas R. Phillips, who is chief justice of the Texas Supreme Court. This column was drawn from his State of the Judiciary Address to the Legislature last week; )

Should Texas elect its judges?

No, says chief justice, who's leading push to cut partisan politics

Austin American-Statesman, Dec 2002

The chief justice of the Texas Supreme Court is not where he is supposed to be.

On this recent Friday afternoon, Tom Phillips should be sitting behind a table in a richly carpeted room as part of an august panel of lawyers and elected officials from across the nation. A committee formed by the American Bar Association has come to Austin, seeking advice on ways to improve the quality of judges in U.S. courtrooms, soliciting testimony from experts that will be pondered and refined before a nicely bound report is issued sometime next spring.

But Phillips has left his seat. It's hard for him to sit still during theoretical discussions about a topic that has long been settled in his own mind.

After 18 years on the court, and having just been elected to four more, the Republican chief justice is convinced that the Texas system of electing judges in partisan races is embarrassing and wrong-headed. What the panel is being told, Phillips already believes with a passion -- that his state, at least, desperately needs to change the way it goes about putting men and women on the bench.

"I think there is a strong consensus in Texas that we are using an outmoded system," Phillips says outside in the hallway. Only four states still do it the way Texas does, he says, and "we are becoming increasingly isolated."

Maybe, finally, Phillips says, lawmakers might do something to change the system in the upcoming legislative session.

Or maybe not.

Like Johnson grass in a West Texas cotton field, the notion of reforming Texas judicial elections springs forth with each new political season, only to be exterminated by the end of the legislative session like a noxious weed.

Reformers, who include Phillips and an impressive slate of lawyers, current and former judges, and politicians among their numbers, are hoping 2003 might be different, with leadership of the state House and
Senate passing to new hands and memories of particularly vicious election campaigns still fresh in voters' minds.

But skeptics are not so sure. Even as similar systems have passed from favor in other states, Texas has stuck with partisan election of judges because it is the known path, the way things have always been done. The system carries the imprimatur of both tradition and the state Constitution, which voters would have to change to do away with the status quo.

An uphill battle

Lawmakers have either resisted or decried previous efforts to take judicial selection out of voters' hands, and even some of the most ardent reformers agree that Texans will not easily accept any changes that dilute their dearly held right to vote on who will and will not be a judge.

If they are to overcome history and voter resistance, reformers know, they must find some palatable way to take a small 1st step toward improving what they perceive as a fundamentally flawed system.

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