the Texas Judicial selection process







The Texas Judicial Selection Process

A thorough examination of the Texas judicial system would be remiss if it didn’t start by giving the historical context. Maintaining law and order ensures that we live in a civilized world. The onus of upholding the law is given to few, who are charged with a great is therefore important that the job is given to someone with the capacity to carry it out. In this paper I shall endeavor to give a short history of judicial selection, discuss some of the common judicial selection processes, and examine the process used in Texas. By the end of the paper, I should have made a case for change in the judicial selection system and present some of the proposals that have already been made.

Although the idea of a separation of powers is one of the basic characteristics of American constitutional thought, it is a novel idea especially when viewed against the vast history of legal thought. From the earliest recorded history, the judicial process was exclusively the king’s preserve . Judges effectively acted as “assistant kings”. However with increasing research into and knowledge of the law, the need to have specially trained individuals arose. Although the judicial process remained a royal function, it was now delegated to the Lord Chancellor in feudal England. American colonies were subject to the same judicial process. The power rested solely on the King in England, which did not auger well with the people of the Americas. In fact, it was one of the major grievances in the Declaration of independence. Upon attaining independence, the 13 original sought to move away from this method of judicial selection .

When Texas joined the union in 1845, selection of judges was a gubernatorial mandate which changed five years later when the sweeping Jacksonian reforms led to the adoption of judicial election. A reversion to old system appointment by governors was seen during the reconstruction of 1869. The current process of judicial selection by election was adopted in 1876. The change was geared toward limiting powers of the governor since the constitution of 1869 had given governors free reign and supreme power to elect over 10,000 officials .

Several methods of judicial selection have been explored. All have different merits, and none has been found to be objectively superior to the rest. However the debates are essential to developing a judicial selection process that optimizes both judicial independence and judicial accountability. Both these values are a means to achieving a purpose and not the purpose of the judiciary itself. Judicial independence aims to achieve impartiality in decision making in order to uphold the rule of law, maintain the separation of powers and promote due process of the law. There are two recognized forms of independence; Institutional and decisional. Institutional independence concerns itself with maintaining the judiciary as a separate branch of government which is not affected by politics. Decisional independence however is concerned with an individual judge’s capacity to make judgments without external pressures interfering with their ability to uphold the rule of law.Judicial accountability on the other hand concerns itself with upholding the rule of law, maintaining judicial responsibility and increasing public confidence in the judiciary. When juxtaposed, these values seem to be antagonistic, yet both are crucial to a functional and effective judiciary system.

To further contextualize this, it is important to discuss the four major processes in existence. These include partisan, non-partisan, appointment and commission selection. The original 13 states of the union still rely on appointive selection, which can be viewed as a carryover from the colonial era. Non-partisan elections are mostly practised in the western and Midwestern state which joined the union in the late nineteenth century. This was greatly influenced by the progressive reforms that were sweeping through the country at the time. Also, the system of selection was thought to be superior to the partisan system. It removed the pressure of public approval fro the judiciary and promoted independence. This was after recognition of the failings of the partisan election system. It was thought the non-partisan selection would produce qualified judges, who wouldn’t have to pander to the public’s whims. Commission selection has been gaining popularity, albeit slowly in recent years. It caters to the need for curbing gubernatorial powers by removing him from the appointing role and also the need for participation by the public.

Partisan selection of judges is witnessed mostly in the southern and eastern sates. These were the states affected by reforms in the Jacksonian period, which called for election by popular votes. This is still the system in use in Texas today. Over the years, there have been proposals to change it, which have all been shot down. One the most vocal critics of the partisan selection system, Roscoe Pound, put forth a very persuasive argument as to why the system in inundated with flaws. Key among his complaints was that politicizing of the judicial system had led to loss of respect for the bench. Later in an address to the Cincinnati bar association he condemned the practice of campaigning for office and termed it disgraceful, “and so out of keeping with the fixedness of moral principles.” What comes out clearly is that judicial independence is sacrificed at the altar of accountability.

With the glaring flaws in the partisan system, reforms were made which aimed at addressing the worst of them through what is known as the ‘merit plan’. It worked as follows: a commission consisting of lawyers and non-lawyers who would actively participate in the selection and vetting of candidates. They would then forward a list of satisfactory candidates to the governor who would choose one form the list. The selected judge would then be put on probation for a period before a confirmatory election. Although various states have tweaked the law, those are the fundamental concepts. The greatest success of this plan has been an expansion of eligible candidates from the traditional white, middle class male, affiliated to a certain party. This plan has seen an increase in the number of women and minorities being selected into office.

Non-partisan elections try to approach the issue of independence and accountability differently. By removing the element of party politics from judicial elections, they promote judicial independence while still encouraging some degree of accountability to the voters. However, this seeming advantage is also its greatest drawback. Without the campaigns and party affiliations, voters go to the poles with little information to base their vote on. In addition to this, without the party campaign s, candidates may spend a lot of money to reach voters. Research and experience ahs also shown that lower voter turnout was a consistent problem with elections that are held outside the regular election year.

The judicial selection in Texas is by partisan election. The governor can however appoint judges to the district and higher courts. The summative effect is that a majority of the judges first get their seats by appointment. These judges experience a slight advantage over their counterparts since they are usually in their incumbency during the primaries and the general election. In the past after appointment judge could be fairly secure in their positions especially since Texas was, for a very long time a democratic one state party. This changed dramatically with the election of the first republican can governor in 1978. Candidates have been experiencing greater uncertainty after appointment ever since.

After appointment, come the judicial elections. While there is little risk involved in party primaries, the same can not be said for the general elections. Since the change in voting styles and the growth of republican demographic, general elections have been characterized by a greater competitiveness and higher risk of losing while in incumbency. Since 1980 a bulk of the judicial contests has been very fickly decided. Winning was more or less up to external factors, such as the popularity of the presidential candidate, whether it was an election year or not and the chances of voters using straight party tickets.

Judicial elections are becoming bigger. There has been an exponential growth in the amount of money being contributed to the campaigns. These campaigns have consistently gotten larger, more politicized, and informative. The flip side is that money for the campaigns usually comes from interest groups. It is not uncommon to find a single contributor funding up to 90% of a candidate’s campaign. This opens up ethical debate of influence peddling. However it is recognized that financial backing is crucial to funding a successful campaign.

There is need for judicial reforms since the selection by election system is ripe for misuse and may ultimately lead to inevitable a loss of faith in the professionalism of the court. The Axiom of 80 shows that their needs to be a better system in place. Summarized the axiom points out the glaring paradox that 80% of the electorate favour voting for judicial candidate, 80% of this electorate won’t vote yet 80% believe that contributions buy influence. This is a system that is soon going to lose the faith the voters. The system from the nineteenth century can not be expected to be applicable to the twenty first century. It is therefore imperative continue the discourse and work toward a better selection system. Some of the proposed reforms include, judicial restriction, state funding of elections, limiting amount of money that can be contributed to a candidate, and provision of information about the candidates by the state. Laws should also be put in place to ensure that commissions are inclusive and provide a guide as to how power shall be dispersed. Hopefully an optimal balance of independence and accountability of the judiciary will be reached.

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