Primary runoff elections for judicial candidates concluded last week with winners thanking their supporters and losers licking their wounds. As a shining example of democracy, this election day, as usual, fell rather short. In Travis County, for example, the turnout was just over 2 percent of registered voters; Harris County saw a turnout of about 1.5 percent. A more serious concern, however, is an enduring one, and that is that Texas and several other states persist in using discernibly partisan elections for selecting judges. On this issue, the gulf between the opinions of informed federal and state judges and the general public is wide. There is no serious groundswell underway to abolish — or even seriously reform — Texas’ partisan judicial election system. Retired Supreme Court justice Sandra Day O’Connor publicly decries our selection system; and she notes its incongruity not only with the system in place at the national level and in the majority of states, but also its incongruity with judicial selection mechanisms in other democratic countries throughout the world.
No one in Texas seems to be paying attention to this alarm. Nor has there been much attention paid within our legislature to the plea of the chief justice of the Texas Supreme Court who, in his “State of the Judiciary” speech last year, insisted that “our judiciary will be made stronger if we appoint our judges based on merit, and hold them accountable in retention elections.”
Texas exceptionalism is deeply embedded in both mainstream public opinion and in the political behavior of the state’s elected representatives. But this exceptionalism serves us poorly with regard to judicial elections. The present system breeds cynicism about judges’ fidelity to the rule of law; it brings out of the woodwork lawyers who craft partisan political appeals to the tiny handful of voters who matter; it requires our best and brightest judges to focus on fundraising and friendraising at the expense of engaging in the hard and often thankless task of judging; and, most seriously of all, it invites corruption, or at least the appearance of corruption. Judges are ministers of justice; they ought not to be elected representatives.
Reasonable people will differ, naturally, about which direction judicial election reform might take. But reaching a critical mass of Texans and Texas legislators to encourage them to take these matters seriously is an important first step.
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin.