Posted by: Patrick Allen Foster | September 26, 2013

State Court Judges and Judicial Elections

Justice Don Willett of the Texas Supreme Court is the focus of an article by Andrew Cohen in the Atlantic“An Elected Judge Speaks Out Against Judicial Elections” — in which Justice Willett discusses the effects of elections (and campaign contributions) on the judiciary. (H/T: Election Law Blog.) In response to an American Constitution Society (ACS) study of the effects of campaign contributions on judicial behavior and the public perception of the judiciary, Justice Willett writes (replying to Cohen’s question):

The ACS study raises difficult and consequential questions, familiar questions that frankly can’t be raised enough. A former Texas Governor, Sull Ross, once said, “The loss of public confidence in the judiciary is the greatest curse that can ever befall a nation.” I don’t disagree. The Texas Constitution, however, mandates a judiciary elected on a partisan ballot. Calling this system “imperfect” is a G-rated description, and I’m intimately acquainted with the myriad drawbacks, and they are plentiful.

On the one hand, Texans insist on their right to elect their judges (though they can’t name any of us). On the other hand, they harbor suspicions about the role of money that ACS chronicles. I’ve long favored smart judicial-selection reform — every member of my court does — and every legislative session, reform measures are filed … and then they fail. Both major parties and lots of activist groups in Texas oppose changing the current partisan elected system. Interestingly, the business lobby and tort-reform groups all favor scrapping our current judicial-selection system.

In other words, those who allegedly benefit from the current system aggressively favor replacing it. But the status quo is deeply entrenched, and legislatively, the wheels always come off.

Meanwhile, Grits for Breakfast has a very good post about the upcoming 2014 elections for the Texas Court of Criminal Appeals, which is the state court of last resort for most criminal cases in Texas.*

Of all the state elections up in 2014, the Texas Court of Criminal Appeals races haven’t received nearly the attention they deserve. They’re the reason I’m voting in the GOP primary this go-round even though most local Travis County races are decided in the Democratic primary. Rumors circulated widely this spring that all three incumbents whose terms are up would step down – Judges Tom Price, Paul Womack and Cathy Cochran, all of whom come from what passes for a moderate wing of the all-GOP court. Judge Cochran is the only one who has so far formally announced her departure.

The GOP primary is all that matters here: Barring a miracle, no Democrat (including Wendy Davis) will win a statewide race in Texas in 2014.

Which doesn’t mean there aren’t important issues at stake. In recent years, many of the CCA’s most critical, high-profile cases have been decided on narrow 5-4 votes, with Presiding Judge Sharon Keller and a persistent faction of two to three reliable sidekicks on the side of the government, pitted against a handful of traditional conservatives who’re slightly more skeptical of state power. That’s makes this election especially pivotal: Some of those 5-4 majorities could flip the other direction pretty quickly if Price, Womack and Cochran all jump ship at once and Sharon-Keller clones, or worse, end up replacing them.

* The nine-member Texas Supreme Court hears appeals in civil matters (including juvenile delinquency cases), and the separate nine-member Texas Court of Criminal Appeals hears criminal appeals. Texas and Oklahoma are the only states that have separate high courts for criminal and civil matters, although some other states, like Tennessee, have separate intermediate courts (like the Tennessee Court of Appeals and the Tennessee Court of Criminal Appeals).

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