Yes, Texas elects its judges. But should it?

Noah M. Horwitz

The first time I voted in a general election (2012), I was shocked at just how long the ballot was. The presidential election had obviously garnered a fair amount of coverage, as did local races for Congress, sheriff and the state Legislature. However, what took up the vast majority of the ballot were the myriad judicial contests. Pages upon pages of district and county benches were to be filled by the voters, in partisan elections. Democratic and Republican nominees had been selected in their respective parties’ primaries to run for the posts: civil, criminal, family, juvenile and probate courts.

Texas is one of only a handful of states that choose their judges by this method. From the county courts to the state Supreme Court, every judge must pick a party and face the voters. If you think this is a rather inefficient way of selecting judges, you are definitely not alone. Indeed, even Wallace Jefferson, the former chief justice of the Texas Supreme Court, has disavowed the age-old practice repeatedly, perhaps most notably in a Houston Chronicle op-ed he penned in 2009. 

“My success depended primarily on a straight-ticket partisan vote,” Jefferson wrote in the aforementioned op-ed, shortly after being re-elected to a third six-year term at the helm of the court. Jefferson asserted that, despite his arguably impeccable credentials, he was elected time after time “because Texans voted for Rick Perry, Kay Bailey Hutchison and John McCain.” The drawbacks of this system are somewhat apparent, as partisan tides are an unreliable and untrustworthy way to choose such an invaluable arbiter of justice as a judge. (In a spirit of full disclosure, I should note that my father is a candidate for judge in my native Harris County.) 

There are, of course, some benefits to the policy as well. With literally dozens of judicial posts up for grabs every few years, nonpartisan elections would produce utter pandemonium, as low-information or otherwise casual voters would have little way to discern the plethora of candidates from one another. Then there is the issue of local control. In Massachusetts, for example, where I previously attended college, all judges are appointed by the governor. Under the current system, progressives in Austin, Houston and other settings are free to repudiate the politics of the state government, and other remote areas may feel free to make their own decisions.

However, there exist countless real examples of these issues of local control. Last Monday, Perry filled an opening in the 212th District Court in Galveston County, recently vacated by Judge Susan Criss, a Democrat. Not only did the governor replace her with a Republican, but he picked this particular replacement over the objection of the region’s state senator, who is also a stalwart conservative Republican. 

“It is an unprecedented action for a Governor to overrule the objection of the hometown Senator whose district includes the appointee,” State Sen. Larry Taylor wrote in a press release. Unprecedented, maybe. But this would be the rule — not the exception — if we moved to a Massachusetts-style system of judicial selection.

“I am in favor of electing judges,” Judge Mike Engelhart recently told me. Engelhart, a Civil District Judge in Harris County, qualified his remarks by noting that a nonpartisan election, one even guided by a nominating committee (a diverse group of appointees with some discretion over the candidates) or the State Bar, would be preferable. However, he strongly reiterated his support for elected judges, noting, “I am in favor of democracy; I think voters should have a say in the judicial branch.” 

The common consensus among many observers, including Jefferson and Engelhart, seems to be that Texas’ current process is imperfect. Engelhart firmly believed corruption is inextricably attached to the money inherent to politics. “We need to get the money out of these races,” he said. “Strict fundraising and spending limits are needed.” I agree. Fundraisers and corporate campaign donations are surely the type of influence we want out of our judicial system, whether it is one elected by the people or not, and the improvement needed will be one that retains local control but curbs the corruption of politics. 

Horwitz is a government junior from Houston.