Judges preside over civil cases that can determine who gets custody of a child or that can result in a judgement that is financially devastating. They also preside over criminal trials that can lead to a lengthy prison sentence — or even the death penalty.
Former Texas Supreme Court Chief Justice Tom Phillips urges voters to do their homework.
“One of my favorite stories is a voter who met Judge [Robert] Calvert, who was chief justice back in the 1960s,” Phillips said. “And they [the voter] said, ‘Judge, I’m so glad to meet you and be able to know who I’m voting for, because normally I just vote for the bottom person on the ballot to counteract the uninformed vote.’”
Phillips said the primary election can be the best time to influence the outcome in a judicial race.
“In a state that has a vigorous two-party system, the turnout for primary elections tends to be low. A lot of time you have a very small part of the community choosing those nominees,” he said.
In counties where one political party is dominant, the top judicial candidates in the primary for that party are likely to do very well in the November general election.
“If you live in Dallas or Harris or Travis County, there is a very good chance every judge elected to the bench is going to be a Democrat, and in some of the rural counties, it will be the opposite,” said Anthony Gutierrez, the executive director of Common Cause, a watchdog group that works to enhance voter rights. “The primaries is your chance to elect a judge you like.”
Texas’ broken judicial system
Phillips said Texas has one of the worst systems for electing judges.
Primary candidates in judicial races affiliate themselves with a political party. Phillips said identifying with a party opens the door to the appearance of bias on the court.
“It really puts candidates in an awkward position,” he said. “The party label gives people a false idea of the role of a judge, which is not to make policy, but to apply the law that the people themselves have made.”
In those counties where one party dominates, unqualified candidates can end up as judges and then make decisions that are out of their realm of expertise.
Phillips said voters should worry about that.
“The real question is, have you been exposed to the type of legal problems that the court you’re running for has to address? I mean, nobody wants to be the first person that a brain surgeon operates on,” he said.
Candidates who run for judge in partisan elections also need to finance their campaigns. And that can create problems.
Lawyers, businesses and lobbyists all contribute to judicial campaigns. And their cases often end up in front of judges they supported.
Rio Grande Valley attorney David Oliviera said he’s seen this firsthand. And he warned that campaign contributions can taint the system.
“We’re allowed to contribute to judges, and we can appear in their court the next day,” Oliviera said. “And as a judge, you may try to be as impartial as you can, but he’s got a guy sitting there that gave $5,000 and a poor guy on the other side didn’t have enough money to contribute.”
Looking for change
Democrats and Republicans alike have raised concerns about the way judges are elected for decades. And many have tried to change the system.
About two years ago, the Texas Commission on Judicial Selection raised concerns about Texas’ partisan judicial selection system. The commission’s members included state legislators from both parties, prominent attorneys and former judges.
Other states have reduced the influence of political partisanship in judicial races. The commission’s report noted that more than a dozen states — including Kentucky, Minnesota, West Virginia and Wisconsin — use nonpartisan elections to select state Supreme Court justices. And 15 states, including Arkansas, California and Florida, use nonpartisan elections to select judges of all trial courts.
The commission also wanted to further regulate campaign contributions in judicial races and increase qualifications for judges.
But judges are still elected in partisan races.
Phillips, who served on the commission, said he’s waiting for the day the system will change.
“You don’t have to give a bribe to get your garbage picked up,” he said. “So having a neutral and well-informed judiciary is just critical to America, is critical to the quality of our life here and it’s critical to the image that we hope to project across the world.”