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Texas: Why Not Elect Judges on Merit, Not Whim?

The Chief Justice of the Supreme Court of Texas has an interesting and well-written op-ed piece in today’s Dallas Morning News. The gist of the article is that Texas should move from partisan judicial elections to gubernatorial appointments, with retention elections every few years. This system has many aspects to recommend it, not least of which is an attempt to remove the public’s perception of justice being purchased by campaign donations.

I do find it interesting though that so many Texas Republicans are jumping on the appointed judiciary bandwagon at this time. Every state-wide office in Texas, including the state-wide appellate courts, is held by a Republican. But demographic changes have swept Democrats into office in Dallas and Harris counties, and that trend is bound to continue in the next election cycle with other large counties. So is it just coincidence that as more local Democratic judges are being elected, the Republicans now want the Republican governor to appoint all judges? Perhaps I’m just being cynical? Here is Chief Justice Jefferson’s article:

You don’t know who I am. I don’t blame you.

I have been on the statewide ballot three times, in 2002, 2006 and 2008. I was elected each time by impressive margins. Yet a July 2008 statewide poll found that 86 percent of the electorate had “never heard of” me. I won because Texans voted for Rick Perry, Kay Bailey Hutchison and John McCain.

My parents gave me a good ballot name. My beautiful wife and three handsome sons adorned political advertisements on network television. But these things tell you nothing about my intellect, integrity or temperament.

My success depended primarily on a straight-ticket partisan vote.

I lost Bexar County last November, although it is my home. I am the first African-American justice and chief justice on the Texas Supreme Court, and I am the descendant of a slave who was owned by a Texas judge. The irony of my pedigree, however, could not secure a victory in Harris County, where the black voter turnout reached record numbers.

I campaigned hard on merit: I have handled cases successfully in the U.S. Supreme Court, the U.S. Court of Appeals for the Fifth Circuit, and the Supreme Court of Texas. I was endorsed by every major newspaper in Texas. They said I was fair, impartial and independent. I was the choice of most lawyer associations. Ultimately, though, my qualifications were not relevant.

Even if I had never appeared in court, lost every endorsement and fared poorly in polls that assess qualifications, I would still have won in Texas. The state voted for McCain, and I was the down-ballot beneficiary.

Currently, merit matters little in judicial elections. We close our eyes and vote for judges based on party affiliation, even though a party label does not ensure a judiciary committed to the rule of law. We reject worthy judicial candidates whose names are hard to pronounce.

The men and women we elect in this arbitrary process make decisions that affect all of our lives. We don’t know who they are.

In a close race, the judge who solicits the most money from lawyers and their clients has the upper hand. But then the day of reckoning comes. When you appear before a court, you ask how much your lawyer gave to the judge’s campaign. If the opposing counsel gave more, you are cynical. Aren’t you entitled to a fair hearing?

We must eliminate cynicism, money and partisanship in judicial selection. We should adopt a system for judges that has two primary components. Judges should achieve office by merit rather than whim, and voters should hold judges accountable, based on their records, through subsequent retention elections.

For the foreseeable future, I will win elections not because I am best suited for the job, but in spite of my qualifications. When a judge’s victory is based on party over principle, money over merit, cynicism over the rule of law, voters lose.

Let’s change the system so that the law governs neutrally. What more can we ask of democracy?

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

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