For Elected Judges, Facing Voters Without Heeding Political Urges

Suppose John Roberts had to stand for re-election as chief justice of the U.S. Supreme Court. Republican primary voters would surely see ads highlighting his ruling that the Affordable Care Act is constitutional. Opponents, taking judicial care not to talk about future cases, would surely take the justice to task for his more unpopular decisions.

Roberts and his colleagues are off the leash. Their counterparts in Texas are not so lucky. Elected judges have to hope the politics work out — that voters will understand unpopular decisions and blame the people who write the laws and not the people who interpret them.

But you know it crosses their minds. You can be a good judge. You can be a good politician. Can you be both?

Here comes a little test. Earlier this year, a state district judge in Austin ruled that the state’s financing of public schools was unconstitutionally inequitable and inadequate, and illegally creates a de facto statewide property tax. That ruling is widely expected to be appealed to the Texas Supreme Court and then, based on the court’s decision, to the state Legislature for a remedy.

The political timing is sensitive. Three of the nine justices — Chief Justice Wallace Jefferson and Justices Phil Johnson and Jeffrey Boyd — will be up for election in 2014 (assuming each decides to run). Six of the nine were initially appointed to the court by Gov. Rick Perry, whose administration lost the case in district court.

The judges are supposed to ignore all of that. Are they aware of it? Maybe, according to Dale Wainwright, who resigned from the Texas Supreme Court last year and now practices law in Austin. But you have to be a judge and hope the politics work out.

“Maybe we’d know an issue was getting a lot of attention,” Wainwright said when asked if judges are aware of the politics surrounding a case. “It might be that we’d know that by the number of people in the courtroom. When you have that kind of a turnout, you know there’s some interest.”

However, he added, “Our training is to separate politics from the law.”

Wainwright points to public opinion surveys that have consistently shown Texans want judges on the ballot — even though they are deeply suspicious about the influence of political money on judicial outcomes.

“People want to elect judges,” he said. “But on the other hand, they don’t know who the judges are. So what are they really wanting? It’s the right to recall bad judges.”

He was referring to crooks — actual bad actors. But politics offers other ways to label someone a “bad judge.”

Judicial candidates avoid talking about future cases when they’re running for offices; they are not supposed to tell you — or even know for sure themselves — how they would rule in cases they have yet to hear.

They can talk about cases already decided, though. And if you were a candidate running, say, against a John Roberts, you would be well advised to scream “Obamacare!” every time you encountered a voter.

Judges cannot always tell which cases are going to cause trouble, according to Tom Phillips, a former chief justice of the Texas Supreme Court. The cases are complicated and hard to explain, and it is difficult to see which pieces of which cases might move voters one way or another in an election.

“Judges who think they’re going to be beat on a case probably shouldn’t be judges,” Phillips said. “You can’t run around with a metal sheet over your head for protection.”

Political attention does not necessarily follow voter attention. And challengers to sitting judges often attack from unexpected directions. Phillips had one opponent who called the Supreme Court soft on crime — a difficult charge to deny in a civil court that never hears criminal cases.

The judges might draw challengers with whatever they decide on school finance. Or on eminent domain, or insurance, or some arcane business fight. Phillips said the judges should find something else to worry about. They can worry about the elections next year.

“Most judges don’t look over their shoulder because, one, it’s hopeless,” he said. “And two, it’s the wrong thing to do.”