Large counties should stop electing judges
Voters can't cast informed ballots with so many candidates
By GERALD BIRNBERG Copyright 2008 Houston Chronicle
Dec. 6, 2008
In the aftermath of the defeat of 23 incumbent Republican judges in
the general election, there has been an outcry from local Republicans
excoriating the selection of judges by partisan elections.
Funny, I never heard those protestations when the Republicans were
sweeping partisan judicial elections in Harris County for the
preceding fourteen years. Yet now that Democrats have broken through
and been elected to countywide benches, the process of selecting
jurists in this manner is widely condemned by Republicans as a
terrible way to run a legal system.
Notwithstanding the transparent hypocrisy of that Republican
epiphany, I actually agree that there are better ways to select
judges than partisan elections. At the outset, I want to be clear:
The group of Democratic judges the voters elected on November 4 are
high quality, well qualified, first-class lawyers who will all be
excellent jurists. Harris County did a wonderful job of electing an
exceptional crop of terrific new judges. In that respect, the system
worked.
The problem is that that result obtained despite the voters, not
because of them. There were 83 judicial candidates seeking approval
from the voters countywide in Harris County on November 4. Not even
the most determined and responsible voter could possibly learn enough
about each of them to make fully informed decisions about all of
them. So, such irrational factors as name became determinates of who
our judges will be. Fully qualified Democrats named "Mekisha" and
"Goodwille" and "Ashish" were less acceptable to voters than equally
qualified and competent Democrats bearing more common names.
The goal of choosing the "right" candidate for judicial office is
further undermined by ethical rules which prevent judicial candidates
from commenting on any topic which might conceivably come before them
on the bench. So, for example, a candidate cannot tell the electing
public whether he or she believes that a Bible should, or should not,
be displayed at the courthouse entrance or whether he of she favors
or opposes hate-crime legislation or laws regulating abortion, or
whether he or she thinks that jury verdicts for personal injury
plaintiffs have been too high or too low. Yet undeniably such
information, if known, could be important considerations for certain
voters.
Now, the fact that a candidate aligns himself or herself with one
political party or another is useful information in understanding the
core values and principles that define a person and likely will
inform his or her decisions to some degree. So, if we are going to
elect judges at all, partisan designations at least give voters some
information to go on in making selections at the ballot box.
Moreover, the party primary process provides a second mechanism (in
addition to the general election) for voters to weed out unacceptable
candidates, and party label is not a factor in winning a primary
election: All candidates in a party's primary are, by definition,
members of that party. So the candidates who appear on the general
election ballot have already prevailed in an electoral process that
depended on something other than an "R" or a "D" beside their names.
Thus, the fact that party designation can be a consideration in
judicial selection at a general election, is not, in and of itself, a
matter of great concern to me. On the contrary, if we are going to
continue to elect judges, partisan affiliation seems to me to be an
imperfect, but relevant, selection criterion.
But such things as name, race, gender, religion or ethnicity should
not determine whether a particular lawyer serves as a judge. While
diversity of the judiciary is crucially important to the credibility,
integrity and effectiveness of the justice system, old-fashioned
prejudice and bias should have no place in choosing who among us
should preside over legal disputes. Yet electing judges as we
presently do creates an intolerable risk of precisely that result. It
also enhances the prospects that something as arbitrary and
capricious as name will influence some voters' decisions decisively,
as it appears to have done in the 2008 general election, and that
result is unacceptable.
So here's my judicial selection plan: I think we should establish a
system similar to the one just adopted by California voters to reduce
partisanship in redistricting. Here's how it would work: In each
judicial district, a Judicial Selection Committee would be impaneled.
The committee would consist of 21 residents of the district — eight
selected by the Democratic Executive Committee in the district, eight
selected by the Republican Executive Committee in the district, and
five Independents (citizens who have not voted in a Democratic or a
Republican primary election in the past six years) selected by the
local bar associations in the area. At least two Judicial Selection
Committee members from each selection group must be non-lawyers. The
committee would select judges from applicants seeking open positions
(who would, of course, provide resumes, letters of recommendation and
anything else they, or the committee, deem relevant or helpful). A
vote of at least 14 members of the committee (two-thirds of its
members) would be required for the candidate to be selected to become
a judge.
Now here's the important part: The candidate must receive the votes
of at least three (or four) members selected by the Democrats, three
(or four) members selected by the Republicans, and two independents
to be elected judge. In other words, the candidate must be acceptable
to a substantial number of committee members from both political
parties and independents. That should assure that quality,
competence, experience, temperament, intellect and reputation trump
partisan association in the selection of judges.
What if a stalemate occurs and the committee cannot agree on a
selection within a specified period of time? In that case, half of
the committee members from each group (selected at random) would be
permanently replaced on the committee by new appointees selected by
the respective executive committees or bar associations. That should
motivate committee members to reach reasonable accommodations and
consensus.
Once selected, a judge would serve for five years. After that, he or
she could be reappointed for one additional five-year term. That
decision, however, would be made by a Judicial Retention Committee,
different from, but selected in the same manner as, the Judicial
Selection Committee. Retention committee members would be chosen no
sooner than 60 days before the retention decision must be made (to
avoid incumbent judges currying favor with, or threatening, committee
members considering their fate).
Votes of committee members would be secret, to shield them and their
associates from retribution or pressure. And the whole plan would be
implemented only in counties with more than 20 judges elected
countywide. Voters in smaller counties and with fewer judicial
candidates on the ballot can probably get to know all of them
sufficiently to be able to cast more fully informed votes than voters
in counties with 50 or 100 judicial candidates on the ballot.
No method of selecting judges is perfect, and this one certainly has
its flaws. And I hasten to add that it is not the official (or even
the unofficial) position of the Democratic Party; on the contrary,
the 2008 Platform of the Texas Democratic Party specifically supports
"continuing to elect judges," although the platform also urges "the
nomination and appointment of qualified, competent persons to serve
as judges." The ideas contained in this article are entirely my own,
personal views, not those of the Democratic Party.
But I believe this system would, among other virtues, eliminate the
need for judges to raise substantial sums of money to finance
expensive election campaigns, with the resulting potential for the
perception of taint or corruption and undermining of public
confidence in the impartiality of the judiciary. And it would
minimize the possibility of irrelevant or irrational considerations
(such as name) seriously impacting the judicial selection process.
And it just might increase voter participation in elections by
allowing electors to get to know more about other candidates on the
ballot (such as legislators or county administrative officers) and
not feeling overwhelmed by a ballot dominated by scores of judicial
candidates.
It might also liberate incumbent judges to be true to the principles
and values that got them selected in the first place, rather than
incentivizing them to become increasingly beholden to partisan or
special interest groups whose support may be crucial to re-election.
Any new idea which achieves all of these benefits would be welcome by
this Democrat.
Birnberg is chairman of the Harris County Democratic Party.
http://www.chron.com/disp/story.mpl/editorial/outlook/6150622.html
