Capitol conundrum: Should Texas change how judges are elected?

By: Chuck Lindell

To get elected and reelected to office, many Texas judges seek campaign contributions from lawyers and law firms that might have business before their courts, undermining public confidence in their rulings and the goal of impartial justice.

But while many denounce the situation — including judges and lawyers trapped in the political donation cycle — there is little consensus at the Texas Legislature about how to address it.

A Capitol hearing last week displayed the difficult issues involved in changing an almost 150-year-old system that requires judges to run for office every four or six years.

Rep. Brooks Landgraf, R-Odessa, proposed a bill to create an 11-member advisory board to rate gubernatorial nominees for local and statewide judges as “highly qualified, “qualified” or “unqualified.” After gaining approval from two-thirds of the Texas Senate, the judges would run every four years in nonpartisan retention elections where voters decide whether they should remain in office.

High-profile support from three current and former chief justices of the Texas Supreme Court was met with sharp opposition from other judges, public-interest groups and advocates who said voters should not be cut out from the initial process of choosing judges.

Democrats at the hearing also were skeptical about the timing of the bill, noting that Republican complaints about judicial selection grew in intensity after Democrats swept many GOP judges from office in the 2018 election.

Supreme Court Chief Justice Nathan Hecht, joined by former chief justices Wallace Jefferson and Tom Phillips, urged lawmakers to take steps to remove politics from judicial elections and said Landgraf’s House Bill 4504 was a good place to start.

“If you want judges who rule in favor of Republicans or Democrats, in favor of the left or the right, in favor of the establishment or outsiders, in favor of the rich or the poor, then we should keep partisan elections,” Hecht, a Republican, told the Judiciary and Civil Jurisprudence Committee.

Eventually, he warned, “the powerful will win that struggle.”

Partisan divide
Rep. Yvonne Davis, D-Dallas, noted that Landgraf’s bill would have the Republican governor nominate judges. Those nominees would be vetted by an advisory board largely appointed by Republican leaders and approved by the Republican-controlled Texas Senate.

“That is as partisan as you can get,” Davis said during the April 15 hearing on HB 4504.

Landgraf responded that there is no way to completely remove politics from judicial selection. “I try to temper that by requiring a two-thirds majority of the Senate and a nonpartisan retention election,” he said.

Landgraf also said his bill was a starting point and that he expected to make changes based on input from interested parties, committee members and other lawmakers.

“If I am going to complain about the situation, I want to offer a solution, but I don’t expect this to be the final form,” he said.

Landgraf said one of his motivations came from partisan sweeps in district court elections in large counties and in some of the 14 regional courts of appeals — movements that benefited Democrats in 2018 and Republicans earlier this decade but, either way, led to widespread losses in a job where experience is essential.

Hecht also said he was concerned about the loss of experienced judges.

“Judges are not elected or rejected on their merits but on whether they happen to run in the same party as the governor, U.S. senator or the president,” he said. “Literally no one knows all the judges on a large county’s ballot. They vote for a party or a catchy name, or they just don’t vote.”

Jefferson said it’s important that judges be accountable to the citizens of Texas but that too few voters know enough about judicial candidates to make an informed choice — something he learned while campaigning for the Supreme Court.

“The accountability factor broke down because people didn’t know who I was,” he told the committee.

No system is perfect
Other states have responded by adopting some sort of appointment process based on a candidate’s qualifications, followed by retention elections that give voters a say in the process, Phillips said.

Who does the appointing, vetting and approval of the candidates varies by state, and no system is perfect or devoid of politics, he said.

“The fact that any system has holes it … should not be a further excuse to do nothing,” Phillips said.

At the very least, he said, allow judges to run for office without party labels: “Judges should not be labeled by party. It’s not a partisan job.”

But Rep. Jessica Farrar, D-Houston, said party affiliation gives voters at least a hint about judicial philosophy and outlook, an important consideration in down-ballot judicial races.

With only about five weeks remaining in the legislative session, it would be difficult for Landgraf’s bill to be changed in time to pass the committee and gain approval in the House and Senate.

However, two less ambitious proposals — HB 3061 and SB 1728 — have passed committees in both houses and would create a commission to study judicial selection and recommend changes for the 87th Legislature to adopt when it convenes in 2021.