The Texas Constitution guarantees Texans the right to select their judges at the ballot box. In recent years, it has become fashionable in crony-elitist circles to denigrate Texas’ method of judicial selection. After all, you can’t trust mere citizens with the courts, right?
During the 2019 legislative session, the House and Senate voted for—and the governor signed—legislation creating a commission to study Texas’ judicial selection process. Only 11 members of the House and six members of the Senate opposed the legislation.
The commission is comprised of several House and Senate members, as well as individuals appointed by the governor, lieutenant governor, and House speaker.
At the commission’s first meeting two weeks ago, several appointed members let it slip that they wanted to remove the “party label” from judges. That’s been put forward in the past as the first step to taking judicial slots off the ballot altogether. Lt. Gov. Dan Patrick quickly—and correctly—rejected that notion. After all, the Republican Party of Texas’ platform explicitly calls for protecting the right of citizens to elect judges.
Those who want to end judicial elections say judges should be “independent” of the electorate. But why? The citizens are sovereign in our republic, not the judiciary. Yes, the judiciary should be independent of the executive and legislative branches, but all three branches should be subservient to the law and the citizenry.
It is more correct to say that judges should have the courage to be accountable to the voters, to lay out their qualifications to sit in judgement of their fellow citizens, and risk being removed from office should they let their personal biases be put ahead of the citizens.
Several states use nonpartisan “commissions” comprised mostly of lawyers to select judges. Typically, such commissions have resulted in a more liberal judiciary even if it is “nonpartisan” by label. Such commissions and selection panels become quickly captive to big law firms, big business, and the Capitol bureaucracy. Such a system forces those who would be judges to seek the approval of Capitol insiders and cronies, rather than the citizenry.
Speaking in Austin last fall at the Texas Chapters Conference of the Federalist Society, an organization of conservative and libertarian attorneys, Professor Brian Fitzpatrick of Vanderbilt University urged Texans to reject proposals to implement judicial nominating commissions.
According to research Professor Fitzpatrick published in the Vanderbilt Law Review, judicial nominating commissions produce a judiciary that is more liberal than the populations they serve. This happens, he suggests, because lawyers are significantly more liberal than the population at large. Moreover, practicing attorneys, particularly those involved in the state bar association, typically wield outsized authority on judicial nominating commissions.
Nonpartisan elections produce similar results, with voters electing judges who are significantly more liberal than the population. They are also criticized for depriving voters of important information about the ideological views of judicial candidates.
Whatever flaws exist in electing the judiciary are only magnified and twisted in a commission-selection process.
The surest way for Texans to lose our right to elect judges would be for us to stop participating in judicial races. We need to be asking more—and more direct—questions of those men and women who seek to don the black robe and take up a gavel. We need to press them harder and not let ourselves be intimidated by the titles. Just like presidents, governors, and school board members, judges work for the people—and should be answerable to the people.
Be watching in the coming days for endorsements from Texans for Courageous Courts—recommendations for judges who will aggressively pursue justice and uphold the law.
And be on the lookout against politicians who want to take away your right to elect those judges!