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The effect of the “Citizens United” decision on judicial elections

Republican attorney David Schenck makes the case in the Trib that the recent Supreme Court decision in Citizens United v. FEC, which basically said that corporations could spend money as they saw fit in political campaigns, signals the imminent death of judicial elections in Texas. I have three things to say about this.

1. I continue to be amused by the amount of attention Republicans have been giving to the flaws and dangers of judicial elections ever since the Harris County near-sweep of 2008. Prominent politicians from State Supreme Court Chief Justice Wallace Jefferson to Sen. John Cornyn have weighed in on it with proposals that were mostly irrelevant to the dangers they claimed to be worried about but which would have done a good job of addressing the problem of too many Democrats winning those races. Whatever the merits of Schenck’s arguments – and I will say, he makes a good case without being disingenuous about it – I feel confident we’ll be hearing more from that crowd again now that there’s a new angle to take on it.

2. I’m open to the idea of finding a different way to put judges on the bench, but let’s be clear about one thing: You cannot take the politics out of it. You can talk all you want about nonpartisan commissions whose charge is to find the bestest and merit-est to don the robes, but someone has to pick the members of that commission, and I guarantee that those selectors will have been elected in partisan elections. It’s not out of the question that the commission could become even more politicized than the current process of partisan elections because it will be an issue for the small number of party activists who pay attention to this stuff to rally around, much in the way that the US Supreme Court nomination and confirmation process has become a flashpoint that has little if anything to do with a potential jurist’s actual qualifications. The point I’m making is that the people who care the most about the outcome will find a way to influence that outcome. I’m not saying that this will be any better or worse than what we’re doing now, I’m just saying we shouldn’t be surprised by it when it happens.

3. Given that, it’s also entirely possible to me that the same actors who influence judicial races now could try to do the same with a “nonpartisan” nominations committee. (Needless to say, they could very easily do this for retention elections, if we went down that path. I assure you, groups like Texans for Lawsuit Reform know very well who they like and who they don’t, and the presence or absence of party labels won’t slow them down at all.) We know from the Bill Ceverha case that big donors sometimes also give money to non-officeholders for whatever the reason. Who’s to say that wouldn’t happen with Nonpartisan Judicial Nominations Committee members? And who wants the TEC to be in charge of sanctioning them when it does happen? I’d almost prefer to let the attack ads fly, because at least that would be out in the open. Again, my point is that interested parties will find a way to have influence over the outcome, we shouldn’t be surprised by this, and if we decide to go down this kind of road, we ought to really think about how we plan to deal with it.

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