The Selection and Retention of Judges in Texas
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SMU Law Review Volume 40 Issue 6 Special Issue Article 8 1986 The Selection and Retention of Judges in Texas Anthony Champagne Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Anthony Champagne, The Selection and Retention of Judges in Texas, 40 SW L.J. 53 (1986) https://scholar.smu.edu/smulr/vol40/iss6/8 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE SELECTION AND RETENTION OF JUDGES IN TEXAS by Anthony Champagne This study of judicial selection in Texas has been made possible by a research grant from the Texas Bar Foundation. The Texas Bar Foun- dation is a nonpartisan, nonprofit organization whose purpose is to pro- mote the ends of justice through educational and charitable means. The Foundation does not express an opinion on the subject of judicial selec- tion, and the opinions and statements expressed in this publication are those of the author alone and are not necessarily shared or endorsed by the Texas Bar Foundation. The author gratefully acknowledges the research grant from the Texas Bar Foundation. Appreciation is also expressed to the individu- als who consented to interviews, provided statistical data, and shared a wealth of information concerning the history of judicial selection in Texas. CONTENTS I. INTRODUCTION ............................................ 54 A. Purpose of Research .................................. 54 B. Overview of the Texas Experience ...................... 55 II. THE MAJOR SYSTEMS OF JUDICIAL SELECTION ............. 57 A. The Variety of Ways Judges are Selected ............... 57 1. Appointment of Judges ............................ 58 2. Commission Selection .............................. 61 3. Nonpartisan Election .............................. 63 4. Partisan Election .................................. 64 B. Comparisons of Judicial Decisions by Judges Selected Under the Various Systems ............................ 64 III. JUDICIAL SELECTION IN TEXAS ............................ 65 A. Appointments to the Bench ............................ 65 B. Judicial Elections ...................................... 67 1. Party Prim aries .................................... 67 2. Increased General Election Challenges and Incumbent Defeats .......... .......................... 67 3. Straight Party Voting and its Effect on Judicial E lections .......................................... 71 4. "Close" vs. "Landslide" Elections .................. 75 5. Location of Incumbent Defeats ..................... 75 54 SOUTHWESTERN LAW JOURNAL [Vol. 40 6. Party Switching and Texas Judges .................. 79 7. The Future of Judicial Elections in Texas ........... 80 C . Sum m ary ............................................. 82 IV. CAMPAIGN CONTRIBUTIONS .................................. 84 A. Amounts Raised for Judicial Campaigns ............... 84 B. W ho Gives and W hy .................................. 88 C. The Relationship Between Campaign Contributions and Electoral Success ...................................... 90 D . Sum m ary ............................................. 91 V. VOTING FOR JUDGES ......................................... 92 A . Voter K nowledge ..................................... 93 B. Cues About Judicial Voting Absent Information About Specific Judicial Candidates ............................ 95 C. Issueless Campaigns and Public Relations Techniques ... 99 D. Names and Name Identification ....................... 100 E. Possible Other Cues ................................... 103 F. Sum m ary ............................................. 103 VI. THE QUALITY OF JUDGES ................................... 104 A. Judicial Quality: A Subjective Concept ................. 104 B. A Representative Judiciary ............................ 105 C. American Bar Association Efforts ...................... 106 D. Committees for a Qualified Judiciary ................... 108 E . B ar Polls ............................................. 109 F. Judicial Evaluations ................................... 110 G . Sum m ary ............................................. 110 VII. ACCOUNTABILITY VS. INDEPENDENCE ...................... 111 SOME SUGGESTIONS BY THE AUTHOR REGARDING ACCOUNTABILITY ........................................... 117 I. INTRODUCTION A. Purpose of the Research UDICIAL selection has been the subject of a long-standing debate both in Texas and in other states. Much of that debate is emotionally charged or based on personal experiences. The purpose of this paper is to offer an empirical analysis of the present system of judicial selection in Texas. The paper will explore what is actually happening within the Texas system and, where appropriate, will draw comparisons and contrasts with studies of other systems of selection in other states. Prior to exploring Texas' court structure and contemporary Texas judicial selection, a brief overview of the state's past experiences with judicial selec- tion will be offered. A short discussion of the major systems of judicial selec- tion will then be presented. In this way, a context will be provided for the analysis of Texas' system. 1986] SELECTION IN TEXAS B. Overview of the Texas Experience A diagram of the structure of the Texas judicial system is presented in Figure 1. This paper will be primarily concerned with the district courts, the courts of appeals, and the two statewide courts, especially the Texas Supreme Court. The Texas Constitution provides for the election of most of the state's judges. However, the governor appoints district and appellate judges to va- cant positions. County courts at law judges and justices of the peace are also elected; vacant positions are filled through appointment by the county com- missioners' court. Municipal judges may either be appointed or elected de- pending on the city charter or ordinance.' Judges were not always elected officials in Texas. When Texas first be- came a state, judges were appointed by the governor with consent of the the influence of Jacksonian Democ- Texas Senate. Five years later, in 1850, 2 racy led to the introduction of judicial elections in Texas. During Reconstruction, gubernatorial appointment of judges was rein- stated. The Reconstruction Constitution of 1869 was replaced in 1876 by the current Texas Constitution, which requires election of judges. The 1876 Constitution greatly limited the powers of the governor and was a reaction to the powers exercised by Governor E.J. Davis under the 1869 Constitu- tion.3 Under the 1869 Constitution, not only did the governor have the power to appoint judges, but he also appointed mayors, district attorneys, and city aldermen. This appointment power was so exten- public weighers, 4 sive that it included 10,000 state officials. Since early in this century, the popularity of partisan election of judges has waned outside of the South.5 Since the South was until recently a one- party Democratic region, partisan election meant that competition for judi- cial offices, if it occurred at all, occurred within the Democratic Party. In- creasingly, Texas, along with much of the South, is experiencing the growth of the Republican Party. Along with that growth comes competition for judicial offices during the regular election. The debate over the desirability of retaining the current system of judicial selection in Texas, however, precedes the growth of the Republican Party in the state. Proposals for constitutional amendments to change the system of selection have been made frequently. 6 In 1974 the Constitutional Revision Commission offered two judicial selection proposals: one for a system based 1. A detailed discussion of Texas' court system is found in TEXAS JUDICIAL COUNCIL AND OFFICE OF COURT ADMINISTRATION, TEXAS JUDICIAL SYSTEM: ANNUAL REPORT, 1983, at 16-30 (1984) [hereinafter cited as ANNUAL REPORT]. Texas judicial selection proce- dures are detailed in L. BERKSON, S. BELLER & M. GRIMALDI, JUDICIAL SELECTION IN THE UNITED STATES: A COMPENDIUM OF PROVISIONS 159-163 (1980) [hereinafter cited as COMPENDIUM]. 2. Douglas, Selection and Discipline of State Judges in Texas, 14 Hous. L. REV. 672, 676 (1977). 3. Id. at 677. 4. T. FEHRENBACH, LONE STAR: A HISTORY OF TEXAS 417 (1968). 5. COMPENDIUM, supra note 1, at 3-4, 14. 6. Dickson, Perspectives on Judicial Reform in Texas: View From the Bench, 2 PUB. 56 SOUTHWESTERN LAW JOURNAL [Vol. 40 FIGURE 1 COURT STRUCTURE OF TEXAS January 1, 1985 SUPREME COURT COURT OF CRIMINAL APPEALS (I Court 9 Justices) ( (I Court - 9 Judges) Jurisdiction: Jurisdiction: Final jurisdiction IppellatenFinal appellate jurisdiction in in civil and juvenile casesj criminal cases. CIVIL APPEALS CRIMINAL APPEALS C COURT OF APPEALR (14 Courts - 79 Justices) Jurisdiction; u Intermediate appeals from trial.. courts in their respective supreme judicial districts. DISTRICT LEVEL COURTS (367 Courts) DISTRICT COURTS (357) CRIMINAL DISTRICT COURTS (10) Jurisdiction: Jurisdiction: Original jurisdiction in civil actions Same as other district courts, but to over $500, divorce, title to land, give preference to criminal cases. contested elections, and contested probate matters. l Original jurisdiction in felony criminal matters. SJuvenile matters. COUNTY-LEVEL COURTS (386 Courts) COSITUTIONAL COUNTY COURTS (254) COUNTY COURTS AT LAW (121) PROBATE COURTS (11I) Jurisdiction: Jurisdiction: Jurisdiction: