I swear, I thought I was done talking about judicial elections, at least for now until one or more of the bills that would affect them comes up in the Lege, but then there was this op-ed in the Chron, and I just couldn’t help myself.
In states across the country, the selection of judges has become increasingly political. Big money is pouring into state judicial elections, much of it coming from special interest groups that do not disclose their sources of funding. In 2012, of the $28 million spent on TV advertising in certain state supreme court elections, more than half was spent by outside groups unconnected to a candidate. In Michigan, where three state supreme court seats were on the ballot, 75 percent of the nearly $15 million in TV advertising was spent by outside groups that invested heavily in attack ads.
I’ve said repeatedly that I consider the influence of large campaign contributions and expenditures to be a much more pernicious threat to the judiciary than any partisan or straight-ticket issues. I’m glad to see op-ed authors Dennis Courtland Hayes and Martha Hill Jamison recognize this. But as is so often the case when an op-ed writer raises the point, they then never get around to discussing what if anything can and should be done about it. As I’ve also said, it may well be that in a post-Citizens United world, there isn’t a damn thing that can be done about this. But if that’s the case, then we all ought to be honest about it and couch whatever other reforms we’re proposing in terms of how they may or may not be affected by free-spending individuals and interest groups. How much different will non-partisan elections or judicial retention elections be if, say, Texans for Lawsuit Reform is free to spend millions of dollars touting the candidates they like and attacking the ones they don’t?
In Harris County in 2008, 19 incumbent judges were defeated in one election, not necessarily based on experience, knowledge, fairness or legal ability, but simply because they were identified with one party. In 2010, the sweep was reversed. Party-based sweeps have affected communities across Texas. This year, 11 of 12 judicial races in San Antonio were won by candidates of a single party. In her Nov. 16 Chronicle column (“Bill aimed at ending judicial campaigning worth a try,” Page B1), Patricia Kilday Hart cites former Texas Supreme Court Chief Justice Tom Phillips’ estimation that partisan sweeps caused by straight-ticket voting have defeated more than 100 district judges statewide.
I really don’t intend to inflict any further beatings on this particular horse, but I missed Phillips’ comments in Hart’s column the first time around, so let me address it here. I’d like for him to be more specific about who exactly lost elections in that past decade due to straight-ticket voting. As we’ve discussed before, it’s not straight-ticket voting that matters so much as it is the general partisan preference of a given county or the state as a whole. By the way, only two of the judicial candidates on the ballot in 2010 in Harris County were incumbent Democrats – Dion Ramos and Kathy Stone, both of whom had won elections for unexpired terms in 2008. I can only imagine the wailing and gnashing of teeth that would have ensued if political conditions in 2010 had been more like 2008 or 2012, or hell even 2006. We may find out in two years if the system hasn’t been radically changed by then.
One change that could reduce the role of politics in judicial selection, which is the subject of legislation filed by Sen. Dan Patrick in the Texas Senate, would be to remove judges from the system of straight-ticket voting. This would require voters to make choices in individual judicial races, rather than simply voting for an entire party roster.
The proposal has potential benefits and drawbacks. It would likely prevent political party sweeps of the bench. Unfortunately, it’s also likely to drive down voter participation in judicial elections. Election data show that nationally, approximately a third of voters neglect to vote in down-ballot races.
At least Hayes and Jamison don’t accept Patrick’s bill as That Which Will Solve All Our Problems, for which I’m grateful. But look, isn’t it obvious that if judicial races are exempted from straight-ticket voting, local parties and other interested bystanders will adjust their behavior and tout or oppose judicial candidates by name? If anything, Sen. Patrick’s bill will encourage more money to be spent on judicial races because it will be harder (read: more expensive) to advocate for or against whoever you want to win or lose. Same thing if judicial races are all made non-partisan. I concede that it’s probable that fewer people will vote in judicial elections under these conditions, and if so then those races are at least somewhat more likely to be decided by voters who are more informed about those races, which I suppose is a step in the direction that Judge Mark Davidson advocates. But again, if the goal is simply to get fewer people to vote in a given election, we should at least be honest about that and not hide behind platitudes and palliatives about partisanship. The logical conclusion here is to do away with judicial elections altogether, and indeed Hayes and Jamison do call for a merit appointment system, though they don’t get into any details about how that might work for the 2000 non-municipal judges statewide or what its pros and cons might be. Maybe the real problem here is that this issue is just too complex to be adequately explored in a 500 word newspaper op-ed.