After a punishing election for Republican judges, state leaders are set to take a long look at Texas’ often-criticized judicial selection system – a partisan election structure that Texas Supreme Court Chief Justice Nathan Hecht has described as “among the very worst methods of judicial selection.”
This summer, Gov. Greg Abbott signed a law creating a commission to study the issue – signaling that the GOP-led Legislature could overhaul the system as soon as 2021. That move comes after Democrats killed a sweeping reform proposal that Abbott had quietly backed.
In Texas, one of just a few states that maintains a system of partisan judicial selection all the way up through its high courts, judges are at the mercy of the political winds. They are required to run as partisans but expected to rule impartially. They are forced to raise money from the same lawyers who will appear before them in court. And in their down-ballot, low-information races, their fates tend to track with the candidates at the top of the ticket.
That means political waves that sweep out of office good and bad, experienced and inexperienced judges alike. And while sweeps are perennial problems for the judiciary, 2018’s elections “set records,” said Tom Phillips, a former Texas Supreme Court chief justice.
Democrats, riding on the coattails of Senate candidate Beto O’Rourke, left the election with majorities on appeals courts where they had previously held zero seats. Republicans were entirely shut out of major urban counties. Voters, largely uninformed about judicial races, differentiated very little between well-funded, experienced candidates and those who had done little but throw their hats in the ring. The judiciary lost hundreds of years of experience.
“Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind,” Hecht warned lawmakers in January, exhorting them to change the system.
But reform is similarly fraught with politics. Voters don’t like having choices taken away from them, even if vanishingly few recognize judicial candidates’ names on the ballot. And any new system has to win the approval of both parties, as a two-thirds majority in each chamber is required for the constitutional amendment needed to change the system.
Those challenges have stalled reform attempts for decades. Then another sweep comes and another effort launches.
“When one of the political parties thinks they’re always going to win, they don’t have any incentive to change – why would they?” Hecht said in an interview earlier this spring. “There’s got to be enough doubt … about which way the state is going politically, and then some stand-up people.”
This year, for the first time in many, there is at least some doubt about which way the state will go politically. And advocates for reform – a group that includes Democrats and Republicans, vast swaths of the state bar and a number of former high court judges – are optimistic. This year, their cause has more wind in its sails: It has drawn the attention of Abbott, a former Republican justice on the Texas Supreme Court.
‘The political winds of the day’
Texas Republicans dominate the state’s judiciary: All nine members on each of the state’s two high courts are Republicans, as are lower-court judges across much of the state. But that dominance began to wilt after last fall’s elections, particularly on intermediate courts of appeals, where Democrats now hold majorities on seven of 14 courts.
After scores of Republican judges lost their jobs last fall, Abbott set about appointing many of them back to the bench. He also became more vocal on the issue of judicial selection reform.
Eyebrows went up in February, when he tweeted a Houston Chronicle column criticizing the partisan judicial election system. The governor commented, “We need judges devoted to the constitution and strict application of the law, not to the political winds of the day.”
Texas must evaluate the importance of an independent judiciary free from politics. We need judges devoted to the constitution and strict application of the law, not to the political winds of the day. #txlege https://t.co/K5m8eHVhKj
— Greg Abbott (@GregAbbott_TX) February 17, 2019
Advocates began to believe this might be the year to push the issue – or at least to tee it up for a big swing in 2021. It was around that time that a group of would-be reformers – attorneys, former judges, and donors – formed a nonprofit organization, Citizens for Judicial Excellence in Texas, to push the issue in Austin. One lobbyist registered to represent the group at the Capitol this spring.
With powerful supporters in his ear calling for change, Abbott was also pushing the issue more quietly. In March, he met with State Rep. Brooks Landgraf, a Republican lawyer from Odessa. Two days later, on the Legislature’s filing deadline, Landgraf proposed a constitutional amendment that would have overhauled the system, centralizing much of the power to pick judges in the governor’s office.
The Landgraf pitch – which ultimately stalled out for a lack of bipartisan support – would have scrapped the partisan judicial election system, replacing it with a multi-step process: gubernatorial appointment, qualifications evaluation by a non-partisan commission, Texas Senate confirmation, and retention elections. Since judges tend to win retention elections, barring scandal, the proposal would effectively have allowed Abbott to appoint judges likely to serve for three four-year terms – giving Republican-appointed judges a dozen years in power even as Texas creaks toward the political center.
Landgraf’s proposal carved out small, rural – conservative – counties, where voters would still have had the opportunity to elect judges on partisan ballots, unless they voted to opt into the appointment system.
Landgraf’s pitch, blessed by Abbott, didn’t sit well with Democrats, who demanded to know why the urban centers they and their colleagues represent would be treated differently from Republican strongholds. They feared overhauling the system would mean losing the new class of Democratic judges elected in last year’s sweep – a class that brought unprecedented diversity to the bench. And they questioned whether centralizing that power in Abbott’s office might effectively give the Republicans control over the judiciary for longer than the party can hold the other two branches of government.
In April, a House committee hosted a spirited debate on the bill, then left the pitch pending. Landgraf said he wouldn’t push to advance it without bipartisan support; Democrats cheered its defeat.
After the hearing, Abbott hosted a small gathering in his Capitol quarters, where he thanked several people who had testified and expressed his support for the Landgraf bill, several attendees said.
Landgraf said he does not regret that his bill failed. He added that he supports studying the issue during the interim and isn’t married to the reform he proposed.
And reformers remain optimistic that, after that test balloon, the commission’s work may push the issue further – despite inertia in the past.
“What’s different this time is that we have a governor who is supportive of this effort,” said David Beck, a prominent Houston appellate attorney who has been agitating for change on the issue since he was president of the state bar several decades ago. Beck serves as president of the new advocacy group. “The recent elections have kind of brought the problem back to everybody’s attention again – that, coupled with the fact that we now have a governor who is willing to take the issue on and support it.”
‘Whose ox gets gored?’
The bipartisan commission, whose enabling legislation Abbott signed into law last month, is to include 15 members: four individuals each chosen by the governor, lieutenant governor, and House speaker; one chosen by Hecht; one by Texas Court of Criminal Appeals Presiding Judge Sharon Keller; and one chosen by the state bar’s board of directors.
The commission is charged with weighing every conceivable option for judicial selection reform, and producing a report by Dec. 31, 2020.
One version of a reform proposal could look like the Landgraf pitch: gubernatorial appointment, Senate confirmation, retention elections. Some states have a non-partisan merit selection commission charged with selecting judges. Another approach would maintain judicial elections but eliminate partisan affiliations.
Or lawmakers could hack it another way, changing the system for judges on Texas’ two high courts or its 14 intermediate courts of appeals, but leaving the system in place for hundreds of trial court judges across the state.
Either way, the proposal has to be palatable to members of both parties: Reforming the system requires amending the Texas Constitution, so any proposal would need a two-thirds majority in both chambers of the Legislature.
“It’s got to not be seen as an attempt at party sabotage,” Phillips said. “It’s hard to devise a way to make this happen. You are asking a political system to come up with a non-political officer.”
Support for the issue seems to come in waves – and it “depends on who’s winning or who’s losing,” said former State Sen. Robert Duncan, a Lubbock Republican who passed a judicial selection reform bill out of the Senate in the early 2000s.
Back in the 1980s, when Democrats dominated statewide office and Texas’ two high courts, the Republican party called for judicial selection reform on its platform, Duncan said.
“They took it out later, when we were winning,” Duncan recalled with a chuckle.
In later years, “the Democrats were more supportive, and then they started winning in the cities, and then it became harder and harder to get Democrats on board,” Duncan said. “I’ve always looked at that as decisive evidence that the system is not working the way it should.”
Of course, most judges will say, partisanship rarely if ever enters into the routine caseload of a judge: marriage disputes, contract litigation, low-level criminal charges.
But there is the occasional case that involves partisan issues or politicians. The conservative Texas Court of Criminal Appeals has handed down several rulings against the prosecutors appointed to take Republican Texas Attorney General Ken Paxton to trial, for example. The all-Republican Texas Supreme Court struck down the Democratic-leaning city of Laredo’s plastic bag ban – a measure the state’s Republican leaders had slammed. In 2018, the Dallas County GOP sued to kick dozens of Democrats off the ballot, alleging that their ballot applications had not been properly signed. The case was ultimately dismissed – but not before the GOP moved to have the judge assigned to it, a Democrat, kicked off for his political affiliation.
Even if partisan bent doesn’t bleed into judges’ decision-making, the mere appearance of impropriety makes it worth changing the system, many say.
But despite loud calls for change, the issue has yet to move.
In 2003, when Duncan managed to pass a judicial selection bill out of the Senate, the bill didn’t make it to the House floor for a vote. In 2013, much like now, the Legislature created an interim committee to study judicial selection. The group never met.
“The central issue in all legislation that is going to cause change: Whose ox gets gored?” said former State Rep. Tryon Lewis, a Lubbock Republican who pushed for the issue during his time in the Legislature. “A lot of people are for something until it’s their ox that’s going to get gored.”
But several lawmakers focused on the issue said they’re optimistic about, at the very least, a productive interim study this time around.
State Sen. Joan Huffman, the Houston Republican who co-chaired the 2013 group, said “attempts to address the issue of judicial selection have always been difficult because of a lack of consensus in the Legislature.”
Still, in a statement to The Texas Tribune, she seemed to keep ambitions for the new commission modest.
“Hopefully, the diverse and bipartisan commission’s report will prove useful to the Legislature,” she said.