In Texas, all judges, including civil and criminal types, are elected in partisan elections. Though this system might seem like an efficient way to fill the bench with capable judges, it is actually counter-productive in a state like Texas. Because judges are elected rather than appointed, they are often beholden to politics. The judiciary has a function that extends well beyond politics or popular opinion. Often times, in order for a judge to make the right decision, he has to do something wildly unpopular. This is the nature of judging, as judges would be obsolete if decisions in court could simply be made on the basis of prevailing public opinion. Because judges face pressure and are hardly able to do their job effectively under the current system, the election apparatus should be scrapped in favor of an appointment system. If the election system could not be scrapped altogether, judges should run in non-partisan elections.
One of the major problems for both civil and criminal judges in Texas is that they need campaign contributions to sustain their re-election efforts. It is unsightly for judges to campaign in the traditional way, too, so they are often soliciting donations in a discreet manner. In a place like Texas, where judges are counted on to appoint public defenders, mediators, and other professionals, this can lead to a system of cronyism (Sample, 2010). In Harris County, for instance, juvenile judges have been accused of refusing to give cases to the newly formed Public Defender’s Office because they rely on campaign contributions from the private attorneys who eat up appointments. This creates a chilling conflict of interest for both the judges and the attorneys who are appointed, as it undermines the neutrality of all parties.
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In addition, judging is difficult work that requires judges to sometimes make an unpopular call. Texas is a highly conservative states, especially on issues of crime. It executes more individuals than all other states combined. What this means is that the electorate would almost certainly punish any judge that appeared to be “soft” on crime. Fair judging requires discretion, though, and it often requires a judge to hold the state to a high standard in proving its case. When judges are elected, these natural functions become much more difficult, as judges fear public backlash when they want to do the right thing.
Pointing out the problem is not enough. It is also necessary to propose a solution. Judges should be appointed by a non-partisan council. That council could be comprised of many different individuals from around the legal field. It might be made up of lawyers of all stripes, law professors, police representatives, and even a few choice politicians. Though putting together a “non-partisan” board is impossible because all members will bring their biases to the table, the board could have balance, ensuring that all voices are represented. The board could then appoint judges based upon objective criteria rather than relying on public opinion. That board would not be required to release individual decisions, ensuring that any elected officials on the board would not feel electoral pressure to appoint certain judges.
In the alternative, a new system might do away with the partisan element of Texas judicial elections. Texas judges are thrown right onto the ballot with national partisan candidates, and they typically declare a party. What happens most often is that people vote straight party ticket, and in Texas, this means nothing but Republicans elected to the bench statewide (Chertoff & Robinson, 2012). This is true in most counties, too, as even in Harris County, Democratic candidates stand little chance. This would allow people to analyze judges on their individual merit rather than just the letter beside their name, which is largely irrelevant given the purported role of judges.
- Chertoff, Meryl, and Dustin Robinson. “Check One and the Accountability is Done: The Harmful Impact of Straight-Ticket Voting on Judicial Elections.” Albany Law Review 75 (2012): 1773-1797.
- Sample, James J., Charles Hall, and Linda Casey. “New Politics of Judicial Elections, The.” Judicature 94 (2010): 50.
