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Adoption of a judicial nominating commission could push Texas courts further to the left, one expert argued at a meeting of Texas attorneys last weekend.

Speaking in Austin 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.

Fitzpatrick was speaking on a panel looking at possible reforms to Texas’ judicial selection process. Following a sweep of Texas’ courts of appeals by Democrats, spurred by the down-ballot success of Democrat U.S. Senate Candidate Beto O’Rourke, Republicans have been exploring whether Texas should modify—or even outright abolish—its longstanding practice of electing judges. Texas is one of only a handful of states that maintains the practice of holding partisan elections for all judicial positions.

There are three main alternatives to partisan elections for the judiciary:

    • Political appointment
      Under this system, which is used by the federal courts under the U.S. Constitution, judges are appointed by the executive (i.e., the president or governor).
    • Nonpartisan elections
      This system is similar to partisan elections, except judges do not run in party primaries and do not identify with a particular political party.
    • Judicial nominating commissions
      Sometimes called the “Missouri Plan,” under this system, a group of experts (typically attorneys) recommend a small slate of 3-5 nominees for each judgeship to the governor, who then chooses from that group who he will appoint. These judges are often subject to nonpartisan retention elections.

According to research he published in the Vanderbilt Law Review, Fitzpatrick argues that 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.

According to Fitzpatrick’s research, though, partisan elections also result in a judiciary that is statistically more liberal than the population. Only political appointment tends to result in a judiciary that is more conservative than the population.

Although Texas currently has judicial elections at every level of court, the governor appoints replacements when judges retire from the bench before the end of their term. This has enabled a common practice in recent decades of Republican judges leaving the bench prior to the end of their term, allowing Republican governors to appoint their replacement, who will then stand before voters as an incumbent. So, in some ways, Texas already has a system that blends elections and political appointments.

Gov. Greg Abbott recently signed into law House Bill 3040, which created the Texas Commission on Judicial Selection. The commission members will study alternatives to the current judicial selection structure. Any major reform to Texas’ method of selecting judges would require a constitutional amendment, which can only be passed with two-thirds support of each chamber of the legislature and majority approval of the voters.