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There are any number of ways to pick good judges, bad judges and those not-quite-rare-enough WTF judges, and none of those selection methods is foolproof.
Texas elects judges, relying on voters to sort through pages and pages of ballot undergrowth, figuring out which candidates are fit to put on the judicial robes. The record is mixed. In a normal election, candidates in the races at the top — for president, for governor and the like — are usually well known to voters. That recognition doesn’t often travel far down the ballot, and judges are elected largely on the basis of political party and whether they have melodious names. It’s a grab bag, evidenced whenever a party sweep clears a courthouse full of incumbents, as happened in Harris County in 2018. That was a party rout, replacing the best and the worst Republican judges with the best and the worst Democratic challengers.
The federal government uses appointment, relying on presidents to pick judges and on the U.S. Senate to confirm the qualified ones, sorting legal wizards from rotten eggs. The voters in this case have more information about the candidates, but the partisan nature of the exercise is obvious to anyone who has followed a U.S. Supreme Court appointment and confirmation.
Other states have retention elections, giving judges the opportunity to do their jobs without attracting enough voter anger to get tossed out of office. As in states like Texas, where judges are elected like everyone else, that’s subject to outside influence by political donors and interest groups hoping to influence the direction of the courts, if not the outcomes of specific cases. Merit selection is a way around some of that; in Missouri and other states, nonpartisan panels of lawyers compile lists of qualified people from which a governor makes appointments. Voters then have periodic chances to vote judges they don’t like out of office.
Good judges support all of these systems, and good judges hate all of them. Judicial selection by any method is subjective, and someone who looks like a good pick might turn out to be a terror in a black robe.
And putting judges on the ballot is popular with voters, even though some judges think it’s unseemly to join political parties, to raise money from people who might have interests before the courts or from lawyers who practice before those judges, and to stump for votes and support like other politicians. That voter support is what Lt. Gov. Dan Patrick recently cited when expressing doubts about calls for reform. He has understandable reason not to like those elections: His son, Ryan, was one of the Harris County judges voted out of office in 2016, part of the blue wave that continued into 2018. Across the state, that 2018 election put 400 new judges into office.
Meanwhile, an appointed state panel is talking about judicial selection again — this happens from time to time in Texas — trying to find a better way. It has some support from Gov. Greg Abbott, a former judge who moved over to the executive branch years ago, and is trying to find an alternative to the partisan elections Texas employs to pick its jurists.
Judges aren’t supposed to pre-judge cases; they’re supposed to hear the facts, read the law and rule accordingly, and without infusing their personal ideas and biases. At the very least, they’re supposed to appear to be acting that way. It’s laudable, but it keeps voters and senators from knowing exactly what’s going to happen when they make someone a judge.
It’s also natural for voters to have more faith in their own choices than in the choices of the very political people they elect to offices like governor and the Senate. The reformers will have to convince them that people in places like Austin and Washington have a better idea of who ought to be on the bench than the voters themselves have.
That’s a hard sale to make. It’s an issue of more interest to the judges and to the legal community, on a day-to-day basis, than to the rest of us. What’s more, it’s potentially risky for a legislator to cross the voters that way without some very clear signal that the voters want to make the change, to give up the power to choose judges. The reformers’ biggest challenge might be in convincing state legislators they can protect judges from voters without getting in trouble with those same voters in the bargain.