In Texas, a Never-Ending Battle Over Judicial Elections

Texas is one of seven states that holds partisan elections for judges, a practice that one watchdog group says can lead to conflicts of interest.

"We have a judiciary at the highest level, the Texas Supreme Court, that gets 40 to 50 percent of its campaign money from the very people who are practicing before that court," said Craig McDonald, head of Texans for Public Justice, a follow-the-money political watchdog.

Audio: Ben Philpott's story for KUT News

He thinks a fix is pretty easy: Move to an appointed judiciary. And he's not alone. Texas Supreme Court Chief Justice Wallace Jefferson said as much in his State of the Judiciary speech before the Legislature in 2011.

"A justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted," Jefferson told lawmakers.

He argued that appointing the judiciary would keep judges from bending to political winds.

"I would eliminate straight-ticket voting that allows judges to be swept from the bench, not for poor work, not for bad ethics, not for bad temperament, not even for controversial but courageous decisions — but purely because of party affiliation," he said.

McDonald said the biggest problem with party affiliation is that it can draw judges into the same ideological battles fought by candidates seeking legislative office.

"Our judges act as if they're politicians,” he said. “They run on partisan ballots, they raise money, they get elected on partisan ballots. They're more politicians then they are judges in many respects."

A brief search of judicial candidates’ TV and web campaign videos brings up plenty of examples, like a spot by former state Rep. Rick Green during his 2010 bid for the Texas Supreme Court.

"Hey, friends. I have some earth-shattering news for you,” he says in the ad. “First of all, this campaign is now Chuck Norris approved. And secondly, we've got our money bomb today."

Green has a law degree but little legal experience. But thanks in part to Norris and some key endorsements from the then-budding Tea Party movement, Green made it to a GOP primary runoff against a candidate with judicial experience.

Does this kind of political wrangling lower the overall quality of the judicial system? Frank Cross, a professor at the University of Texas law and business schools, said it absolutely does.

"Because we have an elected judiciary, our judges are of lower quality,” Cross said. “But it doesn't seem to terribly bother anyone that much."

He said justice isn’t being ruined, but that he thinks some bad decisions have been made based on how we pick our judges, "because the people don't know who they’re voting on."

But while voters usually don’t know a candidate’s qualifications or professional history, Cross said, there's no big reason to switch the system. He says experts have been studying for years whether appointed judges are better than elected judges  and that "they haven't found much."

"There are some differences,” he said. “But some people think, you know, the elected are better; the elected are likely to be a little more aggressive fighting the other branches of government."

Campaigns have sometimes played off doubts about the system of electing judges. Democrat Jim Jordan did it during his 2008 campaign for the Texas Supreme Court.

"Have the scales of justice been tipped in Texas?” his ad said. “Our Supreme Court races are being funded by lawyers, business PACs and interest groups. This needs to change."

Jordan lost his race against Jefferson by 10 points.