Texas’ Judicial Selection Process
Arguments For and Against Partisan Elections
Arguments supporting partisan electionsProponents of judicial elections argue that this method of selection is the most democratic, allowing the people to have a direct voice in selecting judges. They believe voters are capable of selecting a judiciary that reflects their values and that they are entitled to that choice.
“ [Y]ou cannot take the politics out of decisions about who is going to hold what office, but you can take the people out of the politics. This democracy business can be a little messy at times, certainly inefficient and occasionally some bad mistakes are made, but you can trust [voters] to get it right most of the time.”
—Professor Michael E. DeBow of the Samford University School of LawAlong similar lines, those in favor of elections say that the prospect of being voted out of office holds judges accountable to voters. Samford University law professor Michael E. DeBow points to examples from the late 1990s when judiciaries in Texas and Alabama appeared to be heavily inclined towards trial lawyers. When voters caught wind of this, they began what DeBow calls a “revolt,” replacing their judges and moving towards tort reform laws.
“Could this have happened in Missouri Plan states? Or in states with nonpartisan elections? Probably not as quickly.… [I]t is a significant thing for voters to assert themselves as dramatically as they did in these two states. It strongly supports the view that voters are not incompetent to vote on judicial races, and lends aid and comfort to those working to effect legal reform.”
—Professor Michael E. DeBow of the Samford University School of LawAnother argument put forth by proponents of this selection method is that affiliating judicial candidates with a political party efficiently communicates the candidate’s values and ideologies to voters. Indeed, in their book The Politics of State Courts, political science professors Harry H. Stumpf and John H. Culver assert that, “In partisan [judicial] races, the political party label may give most voters all the information they seek.” Furthermore, some argue that partisanship is unavoidable. Even in the assisted appointment method of judicial selection there arises something of a “subterranean process of bar and bench politics,” writes DeBow, one over which voters have little control.
Arguments criticising partisan electionsCritics of partisan judicial elections argue that the growing amount of fundraising in election campaigns gives special interest groups a foothold to manipulate the judiciary to their liking. Judicial elections have become much more expensive in the last decade—partisan elections more so, perhaps because state parties serve as “ready-built infrastructures for ‘bundling’ donations,” according to Billy Corriher of the Center for American Progress. Those skeptical of the process also claim that it creates a highly polarized judiciary made up of judges who are pressured to please their campaign supporters.
“I never felt so much like a hooker down by the bus station… as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote.”
—Ohio Supreme Court Senior Associate Justice Paul PfeiferAddressing the argument that party affiliation gives voters useful information about a judge’s values, Corriher believes voters actually understand very little about how partisanship plays into everyday decisions on the bench.
“If voters understood how a Republican judge differs from a Democratic one in the run-of-the-mill cases that occupy most of the courts’ time, then partisan identification might prove more useful. …
When voters think of judges’ political affiliation, they often think of cases involving controversial social issues, such as abortion or gay marriage, that garner a lot of media attention but constitute merely a fraction of a court’s rulings. But in the states that have seen the most judicial campaign cash, the campaign donors are not concerned with social issues. Instead, liberal judges are supported by trial lawyers who want to see judges protecting individuals’ right to sue wrongdoers; conservative judges are strongly backed by corporate interest groups that want judges who will uphold “tort reform” laws that limit lawsuits.”
—Billy Corriher, Director of Research for Legal Progress at the Center for American Progress
The Shepherd StudyA 2013 study by the American Constitution Society titled “Justice At Risk: An empirical analysis of campaign contributions and judicial decisions” examined the effects of campaign contributions on judicial behavior. Independent researchers analyzed over 2,345 business-related state supreme court published opinions from 2010 to 2012, merging the dataset with over 175,000 campaign contribution records that occurred over that period. Information was also collected on the characteristics of individual justices, including ideology. The findings were reported as follows:
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