The DMN on ending partisan judicial election

The Dallas Morning New recently chimed in on ending the election of judges in partisan elections. The chances of change are slim since no one is showing any real interest in amending the Constitution. Still, the editorial is food for thought about a serious problem. I’ve always found the election of judges a great way to get students to reflect on how they think about elections (especially how much they think about these elections) and what they expect from their judicial system. It’s also a good way to reflect on what we expect elections to accomplish.

The editorial focuses on good judges put in bad situations by partisan elections. That’s a great way to illustrate some of the problems with political campaigns that have little to do with fairly dispensing justice. However, I think there is even more to worry about and that the situation will only get worse.


Can Texas justice outgrow its tawdry image?

First, Texas voters seem to be about as blindly loyal to their party as any I’ve seen. Texans like to see themselves as politically independent, but I don’t see it in their voting behavior. Some Republicans did break rank and become part of the 18% of Texans that voted for Carole Keeton Strayhorn in 2006. And, I’m sure there were Democrats among the 12% of Texans who voted for “Kinky” Friedman. However, there’s very little variation in most races. Republican percentages in statewide races with Democratic challengers ranged from the 51% Don Willett received in his Supreme Court race to 61.5% forKay Bailey Hutchison in her reelection to the US Senate. Justice Willett had squeaked through the Republican primary .

That 10% range between the strongest and weakest Republican makes me think that relatively few Texas partisans will consider voting for someone other than a member of their party. Texas need more independent voters ready to help the state clean house when it means a judge of their party needs to go.

Second, it gets nutty inside Texas parties. When so few Texans vote in the primaries you have to ask who is going into the voting booth during primaries. The people I see playing leading roles in Texas parties are very ideological (to put it politely). They may be good at putting together angry attacks on other parties, but that doesn’t mean they’re of a mind to pick a fair and thoughtful judge.

Just over 600,00 Texans voted in the Republican primaries in 2006. About 500,00 voted in the Democratic primary. When the slice of the electorates get that thin you have to worry that whatever got those voters to show up that day is going to make them vote differently than those Texans who stayed home.

So, it’s not bad enough that we have partisan judges. We’re going to have very partisan judges.

Cash tipping the scales of justiceNow think about what it would take to break out of the partisanship of Texas voters and go beyond the narrow and intense partisanship of so many primary voters: money–lots and lots of money. Personally, I’ve got doubts about any hope premised on asking people to become impartial judges by taking large sums of money from others. The only way for judicial candidates to make themselves visible enough to break through party-line voting in Texas is to raise a lot of money. And, since most Texans don’t contribute to judicial races you can bet that the people giving money have some particular interests. So we go from narrow partisan voting to narrow special interest funding.

The bottom line is that a system of elected judge may have made sense at some time. However, the state of parties in Texas is pushing justice out of the state’s judicial system. Today, judicial candidates must pander to a narrow set of primary voters and/or a special interests looking for a return on their investment. The choice between extreme partisanship or conflict of interest doesn’t leave Texas judges with any good decisions.


Burka on Term Limits

Paul Burka has an an article on term limits for Texas governors in the latest edition of Texas Monthly. A lot of readers of BurkaBlog rant about him (but they keep on reading). Burka has been covering Texas politics for decades. I don’t always agree with him, but there’s no doubt that he knows the ropes.

Term limits is going to be an issue in the campaign and it’s an issue with a troubled past for both parties. Republicans have often been associated with term limits–usually before entering office. Like many Republicans who came to Washington during the rise of the rise of her party in the 1990s, Kay Bailey Hutchison entered the US Senate as an advocate of term limits but will not leave Washington with the same level of enthusiasm.  She’s currently endorsing term limits for Texas Governors.

I like Burka’s argument (without agreeing with it) because he links the need for term limits to the evolution of the powers of the governorship. Many term limits advocates rely on a more simplistic, knee-jerk reaction to power. The problem with the simplistic argument is that you can learn to abuse power quickly and enter office every bit as corrupt an a seasoned veteran. Burka’s analysis is much more realistic and addresses specific powers of the Texas governorship. It could be a great starting point for a class discussion or written assignment.

The GOP gets testy

Stories in the Washington Times and New York Times describe the move by some members of the Republican National Committee to establish a litmus test for Republican candidates. However, it’s so phenomenally silly that it deserves mention for a couple of reasons:

  1. The party that champions shifting power to the state and local level would end up setting national party standards. Rather than allowing Republican primary voters to choose which brand of conservatism they favor, a few people on the Republican National Committee would decree conditions for national party support based from upon high. A major problem with this test will be: who will test the testers? Republican candidates are usually selected openly in primaries with broad participation of Republican voters. Members of the RNC are chosen through the state conventions in a process out of view of most party members and dominated by party elites.Party elites aren’t going to win a test of strength against primary voters and individual contributors, and political action committees. The RNC’s money is small compared to other sources of money and a litmus test will only expose the weakness of the RNC. So here’s a handy rule of thumb: Avoid setting up a test you are going to fail.
  2. Some are basing this on a misguided reading of Ronald Reagan’s suggestion was that his 80 percent friend was not his 20 percent enemy. Under this regime Republican candidates would have to support at least 80 percent of the party’s main tenets to be eligible for support from the party. Reagan believed in competition and would have worked to persuade someone who disagreed with him and would not have declared a fellow Republican an enemy. Reagan succeeded because he emphasized friends–not because he declared enemies. I’m constantly amazed the degree to which many Republicans try to create a cult of Reagan built upon principles and using methods that Reagan would reject.
The GOP's big tent problem

Is this any way to throw a party?

Ultimately, this purge will fail. If FDR’s attempt to purge his party failed, you can bet that this rag-tag band of ideologues will do no better.

This fits the eight-year cycle you often see in politics. For example, Democrats responded to their loss in 1968 by moving to the left and ultimately getting crushed in the 1972 election. Unless cooler heads prevail in the RNC, they will guide their party toward a 2012 loss on the scale of 1964, 1972, or 1984.

Republicans might want to check with those Texans who were thrown out of Democratic party caucuses (in some cases literally) in 1972 and never returned to the Democratic Party. They have a different perspective on the strident demands of party purists.

Update: The Dallas Morning News has reported that some local Republican organizations in some counties have begun asking candidates to answer 10 questions based on the state party platform. However, Texas Republicans are only using the purity test as an information source and not as litmus test for funding.

The Battle for the Aggie Vote

While many people in Aggie-land are getting ready for the annual football game against UT, some in the Aggie nation are thinking about political battles. The Bryan-College Station Eagle has a story about the tough choices that A&M grads face as Rick Perry seeks re-election with Phil Gramm backing Kay Bailey Hutchison.

Messin’ with marriage

Fading Bride and Groom

Are marriages in Texas threatened?

Texas is now in the middle of a debate over the wording of a 2005 amendment to Article I of the Texas Constitution:

Sec. 32.  MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.
(b)  This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

The dispute starts with the phrase that forbids the creation of a legal status “identical or similar to marriage.” Democratic Attorney General candidate Barbara Radnofsky is so bold as to suggest that it would not be unreasonable to say that marriage is identical or similar to marriage. After the Fort Worth Star Telegraph reported the story, it was picked up by CBS, Politics Daily, and media outlets all over the US. Here we are again, in the national spotlight.

A representative of the incumbent Texas Attorney General cleverly replied: “The Texas Constitution and the marriage statute are entirely constitutional.” Apparently, the AG’s office thinks that simply asserting that the Constitution is constitutional (being identical or similar to the Constitution) resolves any dispute. Unfortunately, the AG’s office seems unaware that the point is that the Texas Constitution is now at best fuzzy on the subject of marriage.

A couple of Republicans seem to feel that they can win the debate over the wording here by drawing all kinds of linguistic and philosophical distinctions about the self and being identical. Do conservatives really want to turn the institution of marriage over to linguists and philosophers?  Engaging in this kind of intellectual tail-chasing is an admission that the amendment was poorly worded and created ambiguity.

ElvisThe Liberty Legal Institute (LLI) that helped draft the language is partly correct that this is a diversion on the issue of gay marriage and that this may have begun a word game in the Attorney General’s race. Texas marriages will likely be upheld. It’s also true that I’m regretting not reviewing wedding vows in front of an Elvis impersonator in Vegas last year. It’s a sad commentary when a Texan looks to a phony Elvis in on the Vegas strip for legitimacy in marriage.

The real issue here is that the system failed Texans.

Attorney General Greg Abbott is Radnofsky’s target here. However, many, many people took part in this process and you have to wonder why none of them could not come up with better language for our Constitution. Those words become pretty important when you put them in a constitution. Spell-checking isn’t enough.  Yes, Abbot is the state’s lawyer and he played a role in reviewing the language. However, the Legislature that approved the amendment is full of lawyers and other people pretending to be smart. Surely, someone there could have suggested better wording.

The effort failed conservatives who wanted to ban gay marriage by undermining that effort. Ironically, the groups and politicians who did such a miserable job will simply use this as an opportunity to raise more money. This is like a roofer blaming the rain for leaks in a new roof. Shoddy workmanship left a hole in the Texas Constitution that Radnofsky could drive a truck through. Don’t blame her for their mistake.

Once again Texas pays a price for a state constitution that tries to govern every detail of life in Texas. Amendments breed amendments and no leader in the state is brave enough to address the need for a new Texas Constitution. Amending the Constitution is a growth industry and the 2005 marriage amendment was Texas’ own stimulus package for special interests.

Competition in Primaries

There are new stories in the Houston Chronicle and Amarillo Globe-News about the rising number of incumbents facing challenges in the Republican primaries.

Parties have a special kind of phobia about competition. Party leaders feel that nominating battles bring out the worst in party.  However, don’t blame competition–blame the competitors. The parties shouldn’t be telling potential candidates that competition is bad. Competition is good. Acting like a jerk is bad.

Party leadership should exercise leadership by weighing in whenever their candidates start behaving in a way that would embarrass any respectable political party. Leading an organization requires making some tough call and party leaders shy away from calling out candidates for bad behavior. Former  Ambassador Lyndon Olson pointed out in a speech that we used to get grades for “conduct” in first grade. Some teacher had to offer guidance, assign that grade, and tell our parents that we didn’t “play well with others.” That’s leadership that we learned from. Our school teachers realize that we need to be civilized so that we can learn. What does it tell us if our political candidates aren’t ready to accept these lesson?

The Republican party dominates Texas politics and it’s domination is even stronger in some parts of the state. If the Democrats are not providing much competition then someone has to. We need choices if we want to make change possible. Incumbents without competition in so many races doesn’t do democracy much good.

So, why should Republicans stamp out competition in their party? It’s no fun seeing your incumbents challenged. At the same time it’s not much fun when voters don’t have a choice. Competition can be healthy if it’s civilized.  The problem is not the little competition we have–it’s the lack of civility. Party leaders should spend more time talking about civility in democratic debates and less time trying to stop competition. If a party’s candidates can’t play well with each other, maybe they’re not the best choice for public service.

How Lobbyists Do That Thing They Do

Jim Grace and Luke Ledbetter have published a short article called The Lobbyist on The Houston Lawyer website. It a set of “how to” lessons for lobbyists based on their experience in Austin.
My thanks to Charles Kuffner for pointing this out in his blog, Off the Kuff.