Earlier today, I watched Chief Justice Wallace Jefferson’s “State of the Judiciary” address to the Texas Legislature (PDF). (( In case you’re curious, no, the Chief did not complete the sentence that forms the title of this post. ))
The address began by recounting the accomplishments of recent years. The Chief Justice spoke about the Commission on Children, Youth, and Families and the task force on emergency preparedness. He addressed the ongoing concerns about a lack of resources for criminal defense and for ensuring that innocents are not wrongfully convicted. And he noted that the national economic downturn was putting pressure on Texas legal services for the poor, asking the Legislature to pitch in.
The Chief Calls for Reforming Judicial Elections
The Chief Justice then turned to his main point — a call for the Legislature to reform how Texas picks judges. The Chief Justice discussed the public’s belief that campaign dollars drive judicial decisions, citing a statistic that 80% of Texans have that view. (( Based on a few conversations I have had with trial lawyers lately, it seems like a distressingly large percentage of the bar may share that view. ))
The Chief also noted that straight-ticket, partisan voting can lead to dramatic turnover in the courts unrelated to the merits of any single candidate. He cited examples in 1994, 2006, and 2008. With regard to his own reelection, he said:
I would like to claim that voters gave me the honor of continued service due to stellar credentials, but it may just as well have been tied to McCainâ€™s success in Texas. And this is the point. Justice must be blind â€“ it must be as blind to party affiliation as to the litigantâ€™s social or financial status. The rule of law resonates across party lines.
The Chief’s proposal is merit selection with retention elections, but he made clear his view that any step in that direction would help.
[Update: Here is an earlier post about the Chief Justice’s note to his supporters last fall about the need to fix the election and financing system.]
What Happens Next
Senator Robert Duncan, a Republican from Lubbock, introduced a bill today that would put this issue to the voters in the form of a constitutional amendment, asking them to approve a system of appointments and retention elections.
His bill would only apply to appellate judges; district judges would continue to be locally elected. And it would grandfather in current judges, asking them to stand for retention elections when their terms would otherwise expire. (( As I understand the bill, no new appointments would be made until a judge retires, is defeated in a retention election, or otherwise leaves office. ))
I guess I hadn’t really understood what “retention election” means. In Duncan’s bill, it means that appellate judges stand for “retention” every six years, just as they stand for reelection now. The ballots for these up-or-down retention elections would not show party affiliation. But judges would still face voters every six years, presumably with some degree of freedom for interest groups to mobilize and campaign both for and against retention.
With that in mind, I’m still trying to fully understand how this proposal might affect the public’s perception of judicial impartiality. How powerful would it be to rebrand “elections” to “retention elections”?