Should Texas Judges Be Elected or Appointed?

Senator Jeff Wentworth has, once again, proposed legislation that would change the way Texas judges take office. The proposed legislation would require Texas state court judges to be appointed by the Governor and confirmed by the Texas Senate.

Under the current system, Texas joins only six other states that select judges in partisan political elections, where the judicial candidates routinely accept campaign contributions from lawyers and businesses that appear in their courts. This system, undoubtedly, has many convinced that the influence of campaign money destroys "blind justice" and corrupts the judges who administer it.

The debate about the manner of judicial selection is well-developed, and hotly-contested. There have been many past attempts to restructure the Texas judicial election system.

Critics of the current system argue that lawyers often face a "contribute or suffer the consequences" mentality from elected judges, and the jurists, themselves, are frequently uncomfortable soliciting campaign funds from the very people whose disputes must be decided in an impartial, unprejudiced fashion. Another criticism is that the people elected to the bench are often the most popular lawyers in a community, as opposed to the brightest or those possessing the best judicial temperments.

As a lawyer practicing in San Antonio, Bexar County, I have witnessed great judges being tossed out (and replaced with far less-qualified individuals) because of party line line voting. This occurred with the 2008 Democratic wave that was brought about by frustration with the GW Bush Republican administration, and last year's "shellac" of the Democrats reflecting backlash against the Obama administration. In both elections the best candidate often lost because they were affiliated with the "wrong" party.

The flip-side of the argument has merit, too. Texas is a staunchly Republican state. Democrats wince at the idea of allowing Texas' Republican (and pro-business) governors so many judicial appointments. Further, gubernatorial appointment has long been chided as a "good ol' boy" spoils system benefitting wealthy contributors and the politically-connected.

There could be a compromise, though. Past ideas have included a proposal to appoint judges, and then require them to stand for retention election periodically so voters can decide whether they deserve to keep the robe. No party affiliation would appear on the retention ballot, and judges who lose election would be replaced by appointment. But this system has holes, too, including the fact that retention elections will require fundraising.

I expect that there is little chance that the system will change any time soon. Too much doubt about reform generally promotes business as usual at the Texas Legislature.

Changing the way Texans elect judges would require a constitutional amendment approved by two-thirds of the Senate and the House, and then approved by a majority of Texas voters.