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Money in judicial races isn’t about partisanship

Dan Patrick isn’t the only one seeking to change how we select judges in Texas.

Rep. Justin Rodriguez

Freshman state Rep. Justin Rodriguez, D-San Antonio, is an attorney who has been frustrated for years by this state’s hyper-political process for selecting judges (and the big money that flows into those races), and he was tempted to prescribe a specific remedy during his first legislative session.

Rodriguez is a political realist, however, and he knows that any attempt to reduce the partisanship in our political system will itself be perceived as a partisan act. So he took a different course.

Rodriguez filed legislation Thursday that would create a bipartisan interim committee to study all options for improving the selection of state appellate and district judges. The committee would consist of five senators and five representatives and present its recommendations to the Lege at the beginning of the 2015 legislative session.

“I had a little bit of heartburn over this (bill), because I’m not the kind of guy who likes to study the life out of things,” Rodriguez said. “But realistically, this had the best chance of passing, and it starts the dialogue.”

It’s a dialogue that definitely needs to happen. This state is one of only six that continues to elect its supreme court justices in partisan races, and partisan judicial races tend to attract the most fundraising money. Between 2000 and 2009, $211 million in contributions flooded into state supreme court races in the United States, a 150 percent jump from the previous decade, according to a 2012 report by the Center for American Progress.

This culture of big-money bench manipulation inevitably seeps into appeals- and district-court races, with individual candidates standing in for the competing interests of the progressive Texas Trial Lawyers Association and the conservative Texans for Lawsuit Reform.

Removing party labels from judicial races wouldn’t be a panacea, but it likely would reduce bundling by large-scale party donors and lift some of the pressure that Texas judges feel to follow the party line.

Once they’re elected, a retention-election system could keep judges accountable by allowing constituents to decide whether they can stay on the bench. It might also alleviate the all-too-real nightmare of grandstanding Texas district judges sentencing 18-year-old kids to eight years, with no chance of parole, for graffiti and pot possession charges.

“If justice is truly blind, then we have to figure out a more sublime way of selecting the referees in these matters,” Rodriguez says. “I wish I could tell you what the silver bullet is, but I’m hopeful with this bill we can have a good debate on it.”

Rep. Rodriguez’s bill is HB 2772. I appreciate that Rep. Rodriguez doesn’t claim to already have an answer, unlike some people, but I continue to not understand the fascination with non-partisan and retention elections. As I’ve said before, I don’t see how the money disappears if the partisan labels go away. Labels or no labels, the money will be there because the interest in the outcomes will be there. It’s true that TLR tends to fund Republicans and TTLA tends to fund Democrats, but that’s because each group’s interests tend to align with the parties in question. TLR pours plenty of money into Democratic races as well, as we saw in the recent SD06 special election, because they seek to maximize their influence. If Democrats start dominating statewide races like Republicans have been doing, I guarantee you TLR will be right there backing the candidates that they think will be the most amenable, or the least hostile, to their interests. It’s the way of the world. If you want to change that, you have to take the money out of these races, which is an impossible thing to do in a post-Citizens United world.

Maybe I’m missing something. Maybe there is a way to truly blunt the influence of big campaign financiers that won’t run afoul of current law and precedent and which still allows the election of judges, if that’s what you want. I’m having a hard time seeing any path that doesn’t lead to an appointment system, if there is no change in campaign finance law. But maybe I’m wrong, and maybe Rep. Rodriguez’s study will come up with something that I’m not seeing. I doubt it, but it can’t hurt.

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