Yesterday was the filing deadline for the 2010 primary elections. After much speculation, we now have a final list of who is running for each seat on the Texas Supreme Court. (( To assemble this list, I looked at a Texas Republican Party candidate list, a Texas Democratic Party candidate list, and one published by the Texas Libertarian Party. Those lists are not official; some names may not appear on the ballots in March if state officials conclude that ballot requirements were not met. If you’re curious about other races, a database is being kept by the Texas Tribune. ))

The most crowded race is for the open seat being left by Justice O’Neill. The other contested primary is in Place 9, where new Justice Eva Guzman has a challenger in the Republican primary.

Place 3 (open)

• Jeff Brown (R)
  Justice, 14th Court of Appeals

• Rick Green (R)
  Attorney

• Debra Lehrmann (R)
  District Judge from Fort Worth

• Jim Moseley (R)
  Justice, 5th Court of Appeals

• Jim Sharp (D)
  Justice, 1st Court of Appeals

• Rebecca Simmons (R)
  Justice, 4th Court of Appeals

• Rick Strange (R)
  Justice, 11th Court of Appeals

• William Strange (L) Attorney

Place 5 (Green)

• Paul Green (R) Incumbent

• Bill Moody (D) District Judge from El Paso

• Tom Oxford (L) Attorney

Place 9 (Guzman)

• Jack Armstrong (L) Attorney

• Blake Bailey (D)
  Attorney

• Eva Guzman (R)
  Incumbent

• Rose Vela (R)
  Justice, 13th Court of Appeals

Chief Justice Gray applies for the currently vacant seat on the Texas Supreme Court

The Waco Tribune reports that Chief Justice Gray of the Tenth Court of Appeals has applied for the open seat on the Texas Supreme Court, just vacated by Justice Brister.

That appointment is in high demand. According to the paper:

“Perry had fielded 23 applications for the position as of Thursday, according to a spokeswoman in Perry’s office.”

Justice Brown of Houston files to be a candidate for O’Neill’s seat in 2010

Texas Lawyer has reported that Justice Jeff Brown of the Fourteenth Court has filed the initial paperwork to run for Justice O’Neill’s seat on the Texas Supreme Court in 2010.

I had heard about Justice Jim Moseley (of the Dallas Court and on Twitter) and Justice Rick Strange (of the Eastland Court) running for Justice Harriet O’Neill’s seat. Now Justice Rebecca Simmons of the San Antonio Court is joining the fray.

These three candidates are all Republicans. I haven’t heard who the Democratic candidates might be.

This afternoon, the U.S. Supreme Court granted certiorari in Caperton v. A.T. Massey Coal Co. — the West Virginia case questioning whether it is a violation of the federal due process clause if a judge fails to recuse himself from a case in which a major campaign donor is a party. (Here are SCOTUSblog’s links and writeup).

Because partisan election of judges is a recurring issue in Texas, I’m betting this blog talks about Caperton again. My initial thoughts follow the break.

Read more

Trying to make sense of close election results can be like trying to explain a small daily move in the stock market. What looks like a simple total number is really composed of many smaller pieces, each with its own story. Yet, every day business reporters have to say that the stock market moved up or down “because” of some factor. (( The more philosophical (or cautious) reporters hedge their bets by saying that the market moved “on news of” something. I need to learn that trick. ))

In Harris County, there was nearly a complete Democratic sweep of the district bench — but the races tended to be very close. Close enough that a little nudge, here or there, could lead to an incumbent judge holding onto a seat or losing it to a challenger.

The seeming randomness of those outcomes has confused even the winners.

It’s easy to surmise that a strong showing by the top of the Democratic ticket made the races close. But why did each challenger do slightly better or slightly worse? Why the particular outcomes?

An article in the Houston Chronicle today theorizes that the difference was whether a Democratic candidate had an unusual name:

The straight-party Democratic voting that ushered in a new batch of civil and criminal district judges in Harris County was not the surprise. It was why the three civil-court Republicans who survived were able to do so.

“It doesn’t seem that qualifications were the criteria voters used,” said Kerrigan. “There are some very good judges who were voted out.”

Jurists have a few theories on why some Republicans made it through, including the possibility that some voters simply didn’t complete their ballots. But the most common one is that voters were wary of Democrats with complicated or unusual names.

The GOP judge with the highest percentage of votes was civil Judge Sharon McCally, whose opponent was Ashish Mahendru.

Other Democrats who lost were Mekisha Murray, Andres Pereira and Goodwille Pierre. They lost to incumbents Mark Kent Ellis, Patricia Kerrigan and Joseph Halbach, respectively.

“How common a person’s name is has always been a factor in judicial races,” said civil District Judge Mark Davidson, who lost his race.

Davidson has been on the bench since 1989 and has been part of the judicial leadership in the civil courts.

“Up until 1987, people named Smith ran 14 times and won 14 times,” he noted, although Smiths have lost a couple of times since.

That’s a depressing theory about how voters pick judges. (( Then again, since judicial candidates are prohibited from discussing specific legal issues or pending cases, I have never quite figured out what “issues” we hope will guide the voters in the voting booth. ))

If there is an easy solution to this problem, I’d love to hear it.

Last night, all three incumbents on the Texas Supreme Court won re-election rather handily. Full results are available from the Texas Secretary of State.

As of this morning (with 99.53% of precincts reporting):

Downballot races

Two incumbent appellate justices lost their re-election bids.

In the Third Court centered in Austin, former justice Woodie Jones (DEM) defeated incumbent Chief Justice Ken Law (REP), 52.4% to 47.6%.

In the Eighth Court centered in El Paso, Guadalupe “Lupe” Rivera (DEM) defeated the incumbent Kenneth R. (Kenn) Carr (REP), 66.44% to 35.47%. Justice Carr had been appointed to the court in October 2006.

Lessons for the future of Texas judicial elections?

As with recent elections, the statewide Texas Supreme Court races follow the party-line vote. And there is always a slight drop-off in voters from the top of that ballot as voters move down the page. (( This year, the “turnout” for the presidential election was 59.2%. In the race for Chief Justice, the “turnout” fell to 56.5%. ))

This year, there was something interesting about the way those voters tuned out. On the Republican side, McCain/Palin got 4.45 million votes, and that number fell by about a half million for the statewide Republican Texas Supreme Court winners, who each received between 3.9 million and 4.1 million votes. But the dropoff from the top of the ticket was much less on the Democratic side. Obama/Biden got 3.5 million votes, as did Sam Houston. Linda Yanez and Jim Jordan got around 3.4 million votes.

Electoral strategists can make what they want of that. (( These may not have been the same voters. Some McCain voters may have voted for Democratic judges; some Obama voters may have voted for Republican judges. )) To me, it suggests that the Democratic ad buy to emphasize the judicial races may have gotten some traction.

That said, it was clearly too little, too late. This year, fully two-thirds of Texas’s votes were cast early (5.2 million out of 7.8 million). (( This year may have been unusual, as many people voted early out of fear of lines on election day. In the end, total turnout in Texas was up only marginally since 2004, when 7.4 million votes were cast versus 7.85 million yesterday. )) That suggests a flaw in any strategy to blanket the airwaves with ads over the last few days. (( That’s certainly what it seemed like while I was watching a series of disappointing football games last weekend. The games were so bad that I was hoping the commercial breaks would be more entertaining. No luck. )) By then, many early votes were already recorded.

In 2010, the top of the Texas ballot will be full of statewide offices rather than a presidential contest. Both state parties will have many more things to worry about than just the judicial races.

All six candidates for seats on the Texas Supreme Court squared off in a forum last night in Houston. The event consisted of questions asked by a moderator and “vetted by the [South Texas College of Law] faculty”, so there was no risk of a surprise question from Ponytail Guy.

If you’re in Houston, you’ll be able to watch a replay of the forum on the local PBS affiliate on Sunday, October 12th at 6:00 p.m..

Those of us not living in Houston have to wait. I couldn’t find listings for this show on the Austin or Dallas PBS affiliates. But it looks like the Houston PBS station might eventually put video of the event on its website, as it has already done for some other candidate forums.

In the past few days, the Wall Street Journal has run two separate opinion pieces about judicial elections — one from the left and one from the right.

Last weekend, the paper ran an op-ed titled “Justice for Sale” by James Sample, who directs the Brennan Center at NYU and has recently written a book highly critical of judicial elections.

Sample writes that, “Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.” He then criticizes individual state supreme court justices in three States (West Virginia, Wisconsin, and Illinois) in which Justices did not recuse themselves from cases in which they had received large corporate donations. Sample does not point to any problems with this in Texas. (The lack of corporate donations may be a little-appreciated virtue of the Texas system of electing judges.)

Meanwhile, the paper’s editorial board just weighed in with a piece titled “Wisconsin Bar Brawl” that, while focusing on a particular election contest, also seems to give a business point-of-view on the electoral system.

The editorial board describes Justice Butler’s appointment to the court, saying that “Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left.” As a result, the paper says, “Also noticing [this shift] were members of the state’s business community, which has proceeded to finance an election challenge to Justice Butler.” (emphasis added)

The editorial board, after praising the business community’s “financ[ing] an election challenge,” then criticizes the incumbent Justice because “the Wisconsin plaintiffs bar is pouring money into the race on his behalf. In the current election cycle, more than $228,000 in contributions have come from the state’s lawyers — more than half of the campaign’s total.”

How to conduct judicial elections in a way that maximizes public trust in the system is a difficult political question that’s worthy of debate in future legislative sessions. These two articles, in just a few days, show the very different perceptions the two sides of the civil litigation bar can have of the very same court. Perhaps unsurprisingly, both sides seem to see the other side’s contributions as corrupting the system. The public probably agrees with at least one side — if not both.

In Texas, meanwhile, it has been aptly observed that the media seems quite concerned that the Justices’ campaign travel schedules may have somewhat slowed the output of opinions. I suspect that the Wisconsin court would trade problems in a heartbeat.