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Texas Politics - The Justice System
 
 
 
Katie Garrett, intern for Bob Pemberton campaign Katie Garrett, intern for Bob Pemberton campaign
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Meredith Pickering, intern for Patrick Keel campaign Meredith Pickering, intern for Patrick Keel campaign
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Profiling Texas judges Profiling Texas judges
common law system
discretionary review
precedent
4.6    Impact of Judicial Selection in Texas

Selecting our judges through direct, partisan elections means that candidates for the bench must organize electoral campaigns and run for office just like any other individual running for elective office. They must raise campaign donations, hire staff, make speeches, advertise, organize events, and (more ominously for judicial neutrality) take policy positions.

Direct partisan elections impact the accountability, independence and professional ability of the state's judges, but in different ways and to differing degrees.

Accountability

The system of judicial selection reflects the sentiment prevailing when the Texas Constitution was drafted. There was a strong reaction against the activism of the Radical Republican government established after the Civil War. The writers of the Constitution deliberately sought mechanisms to hold accountable public officials - including the members of the judiciary. Direct, partisan elections seemed a sure way to regularly review the performance of judges.

Critics of this system list numerous concerns. They argue that in the modern era citizens do not truly get to review the performance of judges because elections for offices so far down the ballot provide precious little useful information. This is especially true because judicial posts are quite different from legislative and executive positions for which candidates can legitimately promise to pursue policy changes.

One of the few credible campaign promises judges can make to is to be tough on crime. Crime seems easy to understand and resonates with voters - much more so than, say, corporate mergers and acquisitions, which also affect our day-to-day lives but evoke less visceral responses. Consequently, Texas judges may seem more committed to racking up convictions than to ensuring justice, especially during campaign season. The controversial Tulia drug busts might not have been prosecuted if they had not occurred just prior to a big election year. An electoral system that seems designed to serve the goal of accountability to the public sometimes has the unintended consequence of providing judges with incentives to pursue criminal convictions for political advantage at the expense of impartial adjudication.

Judicial Independence

The state's judicial selection process also compromises independence. In addition to concerns over judges' zealousness in criminal cases because of their dependence on voter support, there are concerns that judges may be overly protective of big-money campaign contributors. This has been alleged in the granting of appeals hearings by the Texas Supreme Court.

Under the principle of discretionary review, the Supreme Court and the Court of Criminal Appeals may choose the appeals cases they wish to hear. When either of our two top courts decides to hear an appeal, it is essentially indicating that it will consider reversing an outcome from a lower court that went against the appellant party.

Ideally, the choice is based on some combination of factors, including the urgency of providing a just remedy, the relevance of the case to issues of the day, or the effect of the case on the shape of the law in our precedent-based, common law system.

However, in its report "Billable Ours: Texas Endures Another Attorney-Financed Supreme Court," the public policy watchdog group Texans for Public Justice (TPJ) argues that the Supreme Court of Texas is more likely to hear appeals filed by large campaign contributors than non-contributors. [3]

  • The TPJ report found that $2.3 million was raised by the four Texas Supreme Court justices who ran for a seat on the Court in 2006. Of this total, 51 percent (or $1.2 million) came from lawyers, law firms and litigants who filed appeals with our highest court during this same period.

  • Because of the volume of requests, the Court accepted only 11 percent of the 3,942 petitions for appeal during this period. But they were seven and one-half times as likely to accept petitions filed by contributors of at least $100,000 than by non-contributors. Further, they were ten times as likely to accept petitions filed by contributors of $250,000 than by non-contributors.

  • The former law firm of then Chief Justice Tom Phillips - Baker Botts - was one of the two firms that contributed more than $250,000 to the justices' campaigns. This firm also had an impressive 74 percent of its petitions for appeal accepted during the period.

The Supreme Court of Texas may be particularly susceptible to improper influence by big-money interests because the Court does not reveal how the justices voted in each decision to accept or reject a petition for appeal.

In order for the Court to hear an appeal four of the nine justices must agree to support the litigant's "petition for review." The Court's policy - which it sets for itself under its constitutional authority - is to keep these voting records secret, too. Although individual justices may voluntarily reveal how they voted, they rarely do. Fourteen other states disclose such voting records to the public. Another section of Texas Politics discusses the difficulty of gauging the impact of money on politics.. Many of the same difficulties assessing the impact of campaign contributions on elected legislators and elected executive branch officers apply even more pointedly to the judicial selection process.

Professional ability

Choosing our judges through popular elections probably has a greater negative impact on the quality and professional ability of judges in the lower trial courts of limited jurisdiction than on judges in the higher trial and appellate courts.

The judicial profile data in the feature Profiling Judges indicates that judges on these higher courts have considerable experience in the practice of law.

Nevertheless, it is possible that Texas's partisan judicial elections produce a state bench with less experience overall than other states with non-partisan judicial elections, merit appointment systems or lifetime appointment systems. Judges in those states are likely to have longer judicial careers because they are less susceptible to being voted out of office.

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3 Texans for Public Justice. link: Billalbe Ours: Texas Endures Another Attorney Financed Supreme Court, October 2006.

Texas Politics:
© 2009, Liberal Arts Instructional Technology Services
University of Texas at Austin
3rd Edition - Revision 103
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