In Democratic judicial primaries last Tuesday, Dayna beat David, Jane trounced Jim, and Colleen got more support than John, David and Brennen combined. Is that all there was to it?
Men have dominated Texas courts for decades. Now, in Democratic-controlled areas of the state, they seem headed for extinction.
The corrective for years of gender inequity on the bench has proven rather simple: voters.
Women have disappeared from the high-octane Democratic presidential primary. But in down-ballot, low-information races, Texas Democrats are increasingly, consistently backing women over men. In last week’s Democratic primary, women won more votes than men in all of the roughly 30 gender-split contests for high court, court of appeals and district court, according to results from the Texas Secretary of State. Rarely was it even close.
In urban areas, Democrats typically beat Republicans in the general election. So if Democratic men can’t beat Democratic women in judicial primaries, the bench in Texas cities is likely to become a lot more female. Democratic men won primary races for high court, courts of appeals or district courts only when they were uncontested or facing a male opponent.
Some voters may have chosen women candidates because of their superior qualifications or experience. But experts say it’s likely that many of them just looked at two unfamiliar names and chose the one that sounded like a woman.
“Maybe they knew nothing, maybe they knew that they were both equal, but all things being equal, they went with the woman,” said Elsa Alcala, a former judge on the Texas Court of Criminal Appeals. “People are voting based on some characteristic that’s apparent from the ballot as compared to knowing who these people really are.”
There’s more, but you get the idea. This issue was important enough that the Chron and Texas Lawyer also devoted feature stories to it.
Look, I get it, judicial elections can be quite random, most people don’t know much about the candidates they’re voting for, yadda yadda yadda. There really were multiple good judges ousted, and that is a shame. It also is what it is, and as I’ve said before, the same mercurial partisan election system that unceremoniously dumped these good judges also elected them in the first place. This is my reminder that while there have been calls since at least 2008 (the first year since the early 90s that Democrats started winning judicial elections in Harris County, mind you) for some kind of different selection process for judges, no one has yet come up with an actual concrete proposal. There is now a blue-ribbon Judicial Selection Commission that is tasked with proposing such a method; I see no reason to trust it and recommend you do the same. I could be wrong, they could come up with something that minimizes cronyism while rewarding merit and promoting diversity, but I’m not going to hold my breath.
By the way, there were seven male Democratic judges who did not draw a primary opponent this cycle: Kyle Carter, RK Sandill, Michael Gomez, Mike Engelhart, Robert Schaffer, Robert Johnson, and Darrell Jordan. If Democrats maintain their recent dominance in Harris County, then we will see those seven men along with 20 women elected to district and county court benches this year. Back in 2004, the last time in a Presidential year that Republicans swept the judicial races, there were also 27 such elections. That year, 20 men and seven women were elected. I admit my memory isn’t what it once was, but I’m pretty sure there weren’t multiple articles written about how hard it was to get elected judge as a woman in Harris County back then.
My point is, let’s all take a deep breath and calm down. There were still 30 male judges elected in 2018, out of 59 total, 29 of whom are still on the bench (Bill McLeod of accidental resignation fame was the 30th). If after the 2024 election there are zero men on the district or county court benches in Harris County, then maybe there’s a problem. And I’m sure in another hundred years or so, society will evolve to the point where it can be remedied. History shows that you can’t rush these things, after all.
(And yes, the irony of these stories running within days of Elizabeth Warren suspending her Presidential campaign is…something.)
QUESTION: So what makes Elsa Alcala qualified to opine about the voting motives (or heuristics) of the Democrats primary electorate? She isn’t even a Democrat.
Okay, so I am wrong. I did my due diligence and it turns out Alcala switched to the Dems. Thanks Wikipedia. I thought the last one to flip was her former colleague Terry Jennings on the Houston Court of Appeals, who then did not stand for re-election as either a GOP or a DEM in 2018, but retired.
I wonder how Terry would do if matched against non-Terry.
So Alcala presumably participated in the Dems’ primary, and now she can relate, except that she might have personal knowledge of some of those names, unlike most other primary voters. Even if all presumably better-informed Texas attorneys were to vote in judicial primaries, that’s still only 105,000 statewide (between the two parties), meaning that the ones that are going to know SOMETHING about SOME of the judicial candidates would be a fraction of the entire primary electorate. But that’s just order-of-magnitude at the statewide level.
The bar poll of judicial candidates might be a better gauge of the attorney-as-better-voters-edge. And what you see there is that the participation rate of the 105,000 Texas attorneys is paltry. Even the race for SCOTX chief only drew 5,109 votes spread across four candidates.
That said, 5,109 is probably still better than 1 Republican Governor making picks of his favorite “non-political” candidates.
State Bar of Texas
2020 Judicial Poll
Final Vote Summary – February 4, 2020
Supreme Court Chief Justice
Mark Ash, Houston 298
Nathan Hecht, Austin 2,706
Amy Clark Meachum, Austin 1,779
Gerald Zimmerer, Bellaire 326
HYPERLINK FOR BAR POLL:
https://www.texasbar.com/AM/Template.cfm?Section=Home&ContentID=48719&Template=/CM/ContentDisplay.cfm
Still, wouldn’t it more appropriate to seek the comments of pollsters and a variety of experts in voting behavior (preferably not just gender study experts) to explain the primary results, as opposed to a former Republican member of the Court of Criminal Appeals who had an epiphany, or a Eureka moment, if you prefer Greek.
Now, for future serious research into the matter, here are some constellations for quasi-experimental testing:
Faceoff scenarios A: Terry vs. Adam.
Scenario B: Terry vs. Eva.
Scenario C: Terry vs. Lynn
… where the names stand for whether (or not) the candidate’s sex is identifiable by fist name.
And a similar approach could then be taken to examine appellate decision-making, except that you will have a much greater number of permutations because each panel has three members, and you will have to include partisan affiliation, not just male/female.
Alas, you can’t do a random-control test in this situation. At least not in actual elections as opposed to a lab simulation with pretend voters and fictional candidates. Instead, you have to go look for patterns in the election data that allow for inferences about causal relationships.
FORGONE OPPORTUNITY TO TEST THE HYPOTHESIS
Too bad Judge R. K. Sandill didn’t draw a (female) challenger. How would that have worked out? Local political campaign lore has it that in 2008 he ran with first and middle name initials only to make himself less ethnic (Southeast-Asian). His full name is shown on his SBOT profile. The same tactical choice also happened to remove the gender cue. So, would incumbent Sandill have been “extincted” too, or would the R.K. have saved him? He ran unopposed, so we don’t know.
But note that there is another angle that is being ignored (except by Kuff, kudos!), and Sandill and a few other incumbents illustrate that point:
STRATEGIC CHOICE OF TARGET BENCH / COA SEAT
In a multi-court urban jurisdiction would-be candidate get to choose the bench they want to target, and it makes sense to go for the one that’s perceived as easy pickings. Conversely, if incumbents don’t draw a challenger even though they are circulating in the metropolitan pool, it means something. Probably it means that they are less vulnerable, based on bar polls or something like pending ethics issues that have the news, or at least the grapevine.
Open seats (or open benches, if you will, in judicial races) are best because there is no chance of being back in the court that’s presided over by the election opponent who weathered the storm as an incumbent. That applies both at the trial level and in the courts of appeals. Unless, of course, you seek a position in a court you don’t practice in, but that raises the issue of experience and qualifications.
So, if you have a lot of business going in a large multi-member court like the 1st or the 14th COA (and given that you don’t get to pick which judges will sit on the panels hearing your cases), the obvious outlet for appellate ambitions is an open seat: like the one vacated by Justice Higley: Hootman go! And make T. next time, not Timothy.
But wait a minute …. In that primary race, Timothy lost to Amparo. Is Amparo identifiable as a female to Gringos? And does not a word ending in -o in Spanish words denote male? As in – say – amigo?
Maybe there is more to it than meets the appetite of the news business eager for gender-themes stories.
Ok, upon further review of the ballot information, so perhaps the middle name did it: Monique vs. Tim. Perhaps there is even a Hispanic bonus, rather than a Hispanic penalty.
Here is the tally for the Hootman-Guerra primary contest:
CANDIDATE NAME PARTY VOTES PERCENT
AMPARO MONIQUE GUERRA 234,527 67.77%
TIM HOOTMAN 111,535 32.23%
Race Total 346,062 (First Appellate District)
Amparo Monique Guerra 171,632 68.64%
Tim Hootman 78,411 31.36%
Race Total 250,043 (Harris County)
Interestingly, Guerra’s middle name is absent from her campaign website.
REMEDIES TO GENDERED DECISION HEURISTICS
Some countries put candidate photos on the ballot, others provide age information and occupational categories. Same approach could be used to add more professional background info for attorney judicial candidates. What kind of law they practiced, for example, and for how long.
Historic gender inequity in the Harris County courts is in some ways related to the fact that you must be a licensed attorney for a certain number of years to run for these court positions, and until recent decades the pool of attorneys in Houston (and in the practice areas of criminal law and civil litigation) was lopsidedly male.
The Harris County Democrat Party has a recent history of the defeat of white male judicial aspirants, especially gay and Jewish males, by black females in their primary. Identity politics?
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