Unlike in our federal system, Texans are blessed with the ability to elect (and un-elect) our judges. But many struggle with what questions they should be asking judicial candidates. For many voters, judicial elections can be like a black (robed) box.

Justice Jeff Brown of the Texas Supreme Court recently joined me and Empower Texans President Michael Quinn Sullivan in the 1836 Studios to talk about how Texans can be more involved in judicial elections. Justice Brown is one of three supreme court justices up for reelection this year, along with hundreds of other judicial candidates at the district and appellate court levels across the state.

Why are these races important? Simply put, judges hold a lot of power over Texans lives. Judges can put citizens in jail, take away their children, seize their homes, and levy money judgments against them. It’s important that such immense power be entrusted to humble and courageous judges who will stand up to bad actors and operate under the confines of the law.

District and county court judges have the power to deal directly with citizens and to make initial judgments. Those judgments are reviewable by justices on the courts of appeals and the state supreme court. It is essential we elect good justices to the courts of appeals because those courts act as a “firewall” of sorts to fix occasional bad rulings that come out of the district and county courts.

We asked Justice Brown what questions Texans should be asking of their judicial candidates.

He encouraged Texans to ask candidates about their judicial philosophies. Brown explained that there are typically significant differences between Republican and Democrat judges and their view of the law. Republican judges are more likely to have a conservative judicial philosophy, which Brown defines as having four pillars: originalism, textualism, due respect for precedent, and respect for the separation of powers.

Originalism is the belief that our national and state constitutions have a clear and fixed meaning that was established at the time they were ratified and amended by the states and the voters, respectively. Conservative jurists reject the idea of a “living constitution” in which the meaning of the document changes to fit social attitudes over time.

Textualism is a related concept calling on courts to apply the law as it is written, not as the courts might wish it to be. Liberal jurists sometimes promote the idea of looking at legislative intent rather than the plain language of statutes. Conservatives reject the idea that we can discern legislative intent and recognize that people ought to be expected only to follow the law as it was written down. Citizens should not be expected to guess at the intent of authors of laws in evaluating whether their actions are lawful.

Due respect for precedent means that courts will respect the opinions made by their predecessors and give due weight to them in deciding new cases. In order to have a society in which the rule of law reigns supreme over the wishes of men, it is important for courts to rule consistently on issues over time. At the same time, however, courts should not blindly defer to precedent when that precedent does not conform with originalism or textualism.

Separation of powers is the concept which developed in England in the 15th and 16th centuries that the powers of government—legislative power to make the law, executive power to enforce the law, and judicial power to pass judgment under the law—must be separated into three distinct branches. Distributing government power ensures that all elements of the government must agree in order to use that power against a citizen. Furthermore, our constitutional system involves juries, both grand juries at the beginning of the process and petit juries at the end of a trial to ensure that, at the end of the day, it is citizens who ultimately wield the power of government against their neighbors. Conservative jurists seek to uphold the separation of powers by zealously guarding the power of the judiciary while also not interfering in the enforcement decisions of the executive branch and refraining from invading the legislative branch by making law.

Conservative judges often compare themselves to umpires in a baseball game. They’re not there to pitch or swing or catch, but simply to call balls and strikes.

Texans should ask their judicial candidates where they stand on these four conservative principles. This way they can know whether the candidates will have the courage to do their job, and the courage not to usurp the powers appropriately delegated to the other two branches.

Experience is also an important factor in choosing a judge. While Justice Brown was quick to note that there are plenty of great judges who have run for higher courts without serving on a lower bench, judicial candidates should be able to point to their relevant experience in the judiciary or as attorneys that has prepared them to sit in judgment of other’s cases.

On the other hand, Justice Brown noted that it is a canon of judicial ethics that judges and judicial candidates should not pre-judge cases that have not yet come before them. Too often citizens want to ask judges how they might rule on a particular case, or a hypothetical case. It is important that judicial candidates not answer such questions. A refusal to answer inappropriate questions is an indication that a candidate is serious about upholding his obligations under the law and under the codes of ethics.

At the same time, the ethics rules are not an excuse for candidates to avoid talking about their judicial philosophy or their view on constitutional principles. Judges and judicial candidates know the rules and are able to know when they should and should not answer a particular question. It is their duty not to give inappropriate answers, not the job necessarily of voters to avoid asking inappropriate questions. So voters should feel free to talk to judicial candidates and explore their judicial philosophies.

Good resources to learn more about judges and judicial candidates are www.EmpowerTexans.com, www.TexasJudges.org, and www.Ballotpedia.org.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.

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