Is There A Better Way To Pick Judges? A New Bill Wants To Explore That Process

By: David Martin Davies

Texas is one of nine states that picks district court judges with a party ticket vote. And Texas is only one of six states that also selects the justices on its supreme courts and appellate courts with partisan elections. Is there a better way to pick a Texas judge? Some legislators may try to offer new ideas to address that old question.

On Jan. 1, 2019, at the Bexar County Courthouse, there were a lot of fresh faces in brand new black robes. It was swearing-in day for the judges who won in the November midterm election. The majority of them were Democrats.

The so-called Blue Wave following the 2018 midterms was a tsunami for Bexar County judicial races. Democratic candidates won 22 contested district and county court elections.

The wave wasn’t limited to Bexar County. In Harris County, 59 Republican judges were unseated. Nineteen incumbent Republican appellate judges lost their seats, politically flipping four major state appeals courts.

This signals how Texas politics is changing … but this isn’t a story about shifting demographics and partisan branding. This is about why those judges are on ballot to begin with.

Vincent R. Johnson is a professor at St. Mary’s University School of Law. “I think that it’s among the worst systems for selecting judges,” he said. “It focuses on the wrong factors, and we could do much, much better.”

He said the quality and diversity of judges is vital for having a fair judicial system.

“Certainly as important who the judges are, judicial selection is the heart of having a fair justice system. If good judges are not selected, if they’re not retained, the system is not going to do good work.”

Texas Supreme Court Chief Justice Nathan Hecht agreed. He has long called for ending electing judges, despite the fact that he’s won many judicial elections himself as a Republican.

He said it isn’t just the problem of wave elections arbitrarily sweeping talented and experienced judges from either party from the bench. One solution to that is to raise the standard to be a judge. Currently all it takes is a law license, and trial experience is not required.

Hecht also pointed to the mere appearance of a judge campaigning, which requires raising money from lawyers. He felt that undermines the credibility of the judicial system.

“And nobody likes it,” he said. “The judges are polled every once in a while: ‘Do you think this looks bad?’ About 80% of us also [say], ‘oh, that looks terrible’ … [So] the political election of judges requires them to raise money. There’s just no other viable way to do it. And it stinks to high heaven.”

San Antonio State Rep. Steve Allison, a Republican, has filed a bill that calls for a study to assess alternative ways to select trial and appellate judges.

He said it’s asking a lot of voters to know enough about judges to make an informed decision on election day.

“We saw it … this last election cycle, that it was just a determination clearly just based on a party affiliation, and we saw it in six years ago … but the opposite party getting the benefit. And I think that’s just a bad situation.”

The Missouri Plan is the system 34 states use, and it’s considered the gold standard. It was adopted in Missouri in 1940 and has five key elements, including the creation of a nominating commission. The commissioners create a list of well-qualified candidates. Then a governor or other authority makes an appointment. And then the appointed judge serves for a short period of time and before facing a retention election.

“It’s not a partisan election,” Johnson explained. “It’s simply a question of whether or not the judge will be kept on the bench. If the judge is approved for retention, then the judge serves to the normal term of office.”

Allison’s bill only seeks to authorize a study exploring alternatives to partisan elections for judges. So if his bill is passed it would be another legislative session before lawmakers could draft a constitutional amendment with the fixes. That would then have to be voted on in a general election likely in November 2021.

But so far Allison’s bill has yet to be scheduled even for a hearing. And the clock is ticking on the legislature.

So the way Texas picks its judges might be the worst way to do it but it’s stuck with the system some time to come.