Commentary: Judicial selection reforms are long overdue in Texas
By: Thomas R. Phillips
Texans have never been afraid of change, and that’s good since the state’s population has almost quadrupled in my lifetime and our once land-and- mineral-based economy has become more vibrant and diverse. But 21st-century Texas’s 19th-century judicial system increasingly fails to serve its people’s needs.
For example, the results of modern judicial elections are often almost random. With over 600 state judges and more than twice that many local judges chosen in frequent elections, victory is more likely due to a good ballot name or the right party label than to qualifications or performance. Indeed, changing political winds in recent decades have swept literally hundreds of good judges from both parties, with thousands of years of collective experience, from office.
Second, the very act of campaigning for judge risks lessening public confidence in the rule of law. Candidates for political offices are supposed to reflect the popular will, and campaigning to gauge public opinion are essential parts of their job. But judges have no constituency except the law—their role is to apply laws made elsewhere, not make up their own rules from case to case. Taking campaign contributions from litigants and lawyers (very few others will ever give) and taking stands on hot-button political issues may be necessary to win a race, but they lessen confidence that the laws are being applied fairly and evenly.
Indeed, because this partisan, high-dollar elective system is increasingly out of step with how most states choose their judges, business and professional leaders look increasingly askance at Texas courts and Texas justice. In most categories, Texas ranks at or near the top in most “best places to do business” surveys, but it ranks near the bottom in perceptions of its court system. Further, it appears future statewide judicial campaigns could well be the costliest and nastiest in the state’s history—which is saying something.
When Texas adopted its current 1875 Constitution, it was like most states in requiring that trial and appellate judges be elected and re-elected on open, partisan ballots. But today, only Alabama, Louisiana and North Carolina join Texas in refusing to elect or re-elect at least some judges by either nonpartisan ballot, pure appointment, or initial appointment with periodic retention (“yes/no”) elections. As a general rule of thumb, Texas can safely modernize when Arkansas and Mississippi have done so.
Fortunately, Texas can solve this problem right now. H.J.R. 148, by Rep. Brooks Landgraf, (R-Odessa) would submit to the voters a constitutional amendment that would task the governor with appointing all new judges with the help of a bipartisan commission, then would require every judge to be retained by a vote of the people to keep their jobs. This reform would dramatically increase the pool of judicial applicants, would free judges to work instead of campaign, and would remove the “justice for sale” taint from our courts.
America’s unique contribution to the theory of governing, and its great competitive advantage in the world marketplace, is an independent judiciary that guarantees equal justice to all. Few emerging democracies have copied our division of responsibility between Congress and the president or between federal and state governments. But most have at least claimed to install a co-equal judiciary, what Chief Justice Rehnquist called “the crown jewel of American democracy.”
As the world’s tenth-largest economy, Texas owes it to itself and to posterity to construct a judicial system that gives, and is perceived as giving, fair, equal, and correct justice to all who come before it. Our patriotic duty demands that we settle for nothing less.
Phillips is a former chief justice of the Texas Supreme Court.