Former Texas Chief Justice Explains Why Judicial Elections Are A Terrible Idea



In an exit interview with the Atlantic’s Andrew Cohen, recently-retired Texas Chief Justice Wallace Jefferson paints a grim picture of the judicial elections system that determines who will hold most of the judgeships in Texas. Such elections are expensive — “If you are running a statewide campaign, there are about 26 million people in Texas. You have Houston, Dallas, San Antonio, and Austin, and all are major media markets. Even to mail campaign literature, you’ve got to spend hundreds of thousands of dollars” — and that money has to come from somewhere. In the past, it’s often come from litigants with business before the court. As ThinkProgress previously explained, former Texas Supreme Court Justice (and now federal judge) Priscilla Owen took thousands in contributions from Enron, and then wrote an opinion reducing Enron’s taxes by $15 million.

But beyond the risk of corporate influence on judges, Jefferson lays out a far more fundamental problem “the voters don’t know the judges and they can’t be expected to know the judges.” In Harris County, the county which encompasses Houston, for example, “there are probably 60 or 70 judges on that ballot. The voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation.”

When voting for lawmakers, partisan voting is smart. The best indication of how a legislator will behave is typically which party they belong to, so a voter eager to see their preferred policies enacted can best achieve this goal by figuring out which party is likely to support those views and voting for that party.

Judges, especially trial judges, have very different jobs from legislators, however. Their jobs involve mostly technocratic tasks where sheer competence is the most desirable trait — although a judge’s partisan views certainly become more and more important on higher-ranking courts. Yet, as Jefferson explains, voters select judges based on criteria that has little to do with their legal skills and ability to manage their docket:

[I]n 2008, when I was on the ballot, it was McCain versus Obama, and Republicans in Texas by a large margin voted for McCain but they voted straight-ticket. So they voted McCain and every single Republican down the ballot. And in Harris County that year, Obama was extraordinarily popular so they voted for Obama and every Democrat down the ballot. I won [my] election easily, [but] in Houston there was almost a complete sweep of Republican judges — they were replaced by Democrats.

That makes no sense. These votes are not based upon the merits of the judge but on partisan affiliation and if its not party affiliation it’s the sound of your name. I said that almost all the Republican judges in Harris County lost—well, there were three exceptions. And in each of those cases, the Democratic candidate had an ethnic-sounding name. That’s no way to differentiate among candidates. And if it’s not partisan affiliation or the sound of your name, it’s how much money you can raise—which, as I said, undermines confidence in impartial justice.

Indeed, the problem may be even worse than Jefferson suggests. One of Jefferson’s colleagues on the state supreme court, former Justice David Medina, was recently defeated by an attorney who reportedly told two Houston lawyers that he ran against Medina because “I can beat a guy with a Mexican last name.”

(HT: Josh Blackman)