Texas considers ending judicial elections as Democrats gain ground
Voters in Houston, Texas, elected 19 black women to local judgeships last year. The new judges, all Democrats, have instituted wide-ranging reforms to the county's bail system. Voters also sent Democratic judges to the state appeals court.
A few months later, Republican Gov. Greg Abbott — a former Texas Supreme Court justice — suggested that he wanted to change his state's system of choosing judges in partisan elections, citing concern about the courts' independence. Abbott has also appointed several judges that voters rejected last year to seats on higher courts.
This year Republican legislators introduced a bill, supported by Abbott, that would have amended the state constitution to replace judicial elections with a system in which the governor appoints judges, subject to Senate confirmation. Every four years, voters would decide whether to keep the judges in office through a nonpartisan "retention" election.
However, the bill would have ended elections only in counties with more than 500,000 people, targeting urban areas like Houston. That would mean the governor would choose judges in the state's larger, more diverse counties, while rural, conservative counties could keep choosing their own judges.
Democratic legislators refused to back the amendment bill, which needed support from two-thirds of the legislature to pass.
Instead, legislators set up a commission to study how Texas chooses its judges. The governor and legislative leaders appointed the commissioners last week, and Abbott's choices include a former judge who was affiliated with an organization that promotes judicial merit selection.
Many Texans from across the political spectrum want to change how judges are chosen, though for different reasons. Some worry that because judges serve relatively short terms, "wave" elections can lead to high turnover. The legislature has already ended straight-ticket voting starting next year, and supporters of this change believe it will mitigate the turnover resulting from frequent judicial races.
So far this century, no Democrat has served on the Texas Supreme Court. Democrats controlled the court in the 1980s, when some justices were criticized for accepting campaign cash from law firms appearing before them. The Democratic high court also struck down laws backed by big business, which began calling for an end to judicial elections while also spending millions to elect a court more to their liking. High-profile Republican political adviser Karl Rove helped engineer the court's GOP takeover, which was complete by 1998.
"Many interest groups and businesses had pushed for merit [selection] reforms," as law professor Jed Shugerman observed in his 2012 book "The Peoples' Courts," "but once they had a new winning strategy in judicial elections in the 1980s, they shifted their resources to win judicial elections."
The money that flows into judicial elections raises concerns about conflicts of interest when donors appear before the court.
In last year's Texas Supreme Court race, for example, the biggest donors were the state GOP and corporate law firms that represent oil companies, such as Vinson & Elkins, according to FollowTheMoney.org. In addition, Texans for Lawsuit Reform (TLR), which has long called for merit selection, has given almost $800,000 over the years to Republican Texas Supreme Court candidates, including Abbott and now-U.S. Sen. John Cornyn. TLR receives large contributions from corporate executives while advocating for limits on lawsuits by injured people.
With Texas' demographics changing and leading to Democratic gains on the state's courts, TLR is renewing the call to end judicial elections. The group recently issued a report that said, "A judicial selection system should make qualifications, rather than personal political views or partisan affiliation, the paramount factor in choosing and retaining judges." The report didn't recommend a specific reform but criticized both elections and appointment systems in which the governor or legislature controls a nominating commission.
At a recent gathering of the conservative Texas Federalist Society, professor Brian Fitzpatrick of Vanderbilt Law School argued that appointment by governors or legislatures is the only judicial selection method that has resulted in courts that are more conservative than their constituents. He suggested that merit selection commissions have a bias toward liberal judges, because the lawyers who play a key role on them tend to be more liberal than the electorate overall.
Many states adopted merit selection in the 20th century as an alternative to contested judicial elections. Under a merit system, a commission screens candidates and makes a list of the most qualified. The governor then chooses from the list; under many state systems most of the judges will later stand in a retention election. At the state supreme court level, merit selection of judges has resulted in more racial and ethnic diversity than contested elections.
In many states the governor appoints most members of nominating commissions, including Florida, where Gov. Ron DeSantis (R) campaigned last year on shifting state courts to the right. When a local nominating commission recently omitted his preferred candidate from its list of the most qualified, his office controversially intervened.
The Brennan Center for Justice, which advocates for voting rights and campaign finance reform, recommends that judges be appointed for a single, long term "through a publicly accountable process conducted by an independent nominating commission." The report emphasized that a single-term limit is important because "justices should be freed from wondering if their rulings will affect their job security."
Voting rights and judicial elections
Texas and Florida are hardly the only Southern states where political struggles have erupted over judicial selection. Back in 1950, for example, Alabama voters approved a constitutional amendment to create a new judicial merit selection system, but it's used only to fill vacant seats on courts in Jefferson County, which includes Birmingham.
Shugerman describes the Alabama amendment as a reaction to the election of Gov. Jim Folsom, a populist who opposed poll taxes and supported voting rights for African Americans. "Birmingham's Old South (hard-line segregationists) and its New South (big business and the rising professional class) together fought back in part by taking judicial selection away from Folsom and the masses, and giving it to the conservative legal establishment," he wrote.
Although Shugerman notes that other concerns were at play in Florida and Tennessee, both states moved to merit selection in the 1970s. At the time, they were the Southern states that had shown the greatest progress in registering black voters. Tennessee legislators ended the merit selection commission for high court justices in 2012.
Texas isn't the only Southern state where progressive trends in judicial elections have recently spurred talk of moving toward appointed judges. In the last two North Carolina Supreme Court elections, voters chose Democrats from diverse racial backgrounds. At the same time, Republican legislators have tried to move the state towards an appointment system.
In 2015, North Carolina's GOP-controlled legislature passed a law that would have guaranteed a continued conservative majority on the court despite what the voters decided in 2016. But the law was overturned in the courts, and voters chose a new progressive majority. Since then, the state Supreme Court has protected the right of voters to be free from gerrymandering, and it has stopped many of the legislature's power grabs.
Then last year, North Carolina legislators put an amendment on the ballot that would have ended judicial elections, which were instituted when the state constitution was rewritten during Reconstruction, and set up a nominating commission controlled by the legislature. But the people voted overwhelmingly against it.
Texas Republicans might not have any better luck. At the recent state Federalist Society event, Lee Parsley from TLR said his organization did polling years ago on whether Texans would vote for an amendment to end judicial elections and found that elections are very popular. TLR's consultant estimated that a campaign to persuade them to give up their right to elect judges would cost millions of dollars.