Two Texans Say: It’s Time to Change the Judicial Selection System in Texas

It’s time to change the way Texans pick appellate judges

By Grace Chimene and Joanne Richards
Posted Oct 24, 2020

Can you name one member of the Texas Supreme Court or the Court of Criminal Appeals? Any judge belonging to one of the 14 regional Courts of Appeals? If you can’t, you’re not alone. The vast majority of Texans either didn’t vote for candidates running for these judgeships, or they did vote, but for a candidate they knew little or nothing about.

Wallace Jefferson, former chief justice of the Texas Supreme Court, wrote in 2009 in the Houston Chronicle:

“You don’t know who I am. I don’t blame you. I have been on the statewide ballot three times, in 2002, 2006 and 2008. I was elected each time by impressive margins. Yet a July 2008 statewide poll found that 86 percent of the electorate ‘never heard of’ me. I won because Texans voted for Rick Perry, Kay Bailey Hutchison and John McCain.”

With seven seats between Texas’ two highest courts up for election this November, the future of Texans is at stake right now.

Ensuring that our judiciary system is composed of qualified, impartial judges is necessary to securing the rights of Texas’ voters, workers, business owners and community members.

But that becomes difficult if Texans continue to elect appellate judges they know little about.

It’s time for a change.

The Texas Commission on Judicial Selection is meeting now to discuss a wide variety of election and appointment systems and will make recommendations to Gov. Greg Abbott and the Legislature.

Texas is one of only six states that still select their judges in partisan elections.

This partisan election system is precisely why party affiliation carries such an outsize importance in deciding who ends up behind the bench in our state. And, although there is no perfect judicial selection method, there must be a better system than our current one.

One alternative is to select judges based on merit.

This method, currently used by 23 states, gives a nonpartisan nominating commission the responsibility of reviewing public input and evaluating the qualifications of judicial candidates, including their competence, fairness and integrity.

The commission then makes appointment recommendations to the governor. It’s worth noting that many of these merit-based systems include retention elections, so that the voters can hold judges accountable.

How does our current system of electing judges stack up against a merit-based system?

In a word, poorly. Because voters have so little information about judicial candidates, voters often select judges because of their political affiliation — calling into question the impartiality of the court. And because the top of the ticket often influences down ballot races, Texans often lose out on highly qualified judges.

Moreover, because judicial candidates must raise money to campaign in our election system, the appearance of the money influencing their decision making is hard to shake.

A merit-based selection process would insulate state courts from political influences by selecting judges based on merit, not political allegiance or affiliation.

Many ask: How are nominating commissioners chosen? Who makes the final selection of judges? These questions are important, as the “devil’s in the details.”

Among the states using merit-based selection, the fairness of the different systems varies tremendously.

An unfair merit-based system that gives too much discretion to the governor, partisans or other special interests, could be much worse than our current system.

It’s the job of the Texas Commission on Judicial Selection to sort through these many differences, avoid conflicts of interest and find the right system for Texas.

There may be no perfect system of judicial selection, but it’s clear that Texas has plenty of room to improve.

Texans deserve a fair and impartial judiciary.

One that is beholden to the rule of law, not wealthy special interests. We call on the commission to find the best way to make that a reality.

Chimene is president of the League of Women Voters of Texas. Richards is chair of Texans for Fair Courts.