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.
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.
Now 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.