Who Should Pick the Judges?
The people should.
Winston Churchill famously remarked that democracy is the worst form of government, except for all the others. He was right. Yes, the process of elections is imperfect, and it occasionally produces bad results, but the alternative isn’t perfection—it’s something worse. The same holds true for judicial elections.
In Texas, voters choose judges—from the lowest justice of the peace to members of the Texas Supreme Court—in partisan elections, and have done so since 1851. This means that judges periodically have to campaign for reelection, raise money, and appear on the ballot. Like other elected officials, they rely on the informed judgment of the voters to keep them in office. This system is enshrined in the Texas Constitution (Article 5) and seems to work reasonably well. The American Tort Reform Association rates state court systems based on fairness, balance, predictability, and the reasonableness with which civil cases are handled. California regularly receives poor marks, and for two years in a rowhas been rated a “Judicial Hell Hole.” Texas, by contrast, is consistently hailed by business groups and CEOs for having one of the nation’s best business climates, ranking first in most surveys.
Yet critics sometimes allege that Texas’s approach is “broken,” contending that the state would be better off with a system of “merit selection” similar to that used in California. In lieu of partisan elections, merit selection puts a group of “experts” in charge of evaluating whether judicial candidates are qualified for appointment to the bench and then (depending on the system), at election time, recommending to voters whether to retain or reject them. Some critics believe that it’s unseemly and burdensome to require judges to raise money and campaign. They argue that judges should not be perceived as partisan, and that soliciting contributions can undermine the perception of judicial independence and impartiality. Statewide races are expensive. Numerous judges sometimes appear on the ballot, and the typical voter doesn’t always know for whom to vote. Some voters end up selecting candidates based only on their name or party affiliation.
These charges all have some merit, but they don’t prove that judicial elections are fatally flawed. In fact, many of these defects are inherent in the democratic election of public servants; they are the price of self-government. Legislators and statewide elected officials have to campaign and raise substantial amounts of money, while preserving the appearance of fairness. Numerous local officials and governing bodies, from city councils and school boards to water districts—not to mention bond measures, propositions, and the like— appear on the ballot. Voters are expected to make informed choices on Election Day. Indifferent or uninformed citizens often fail to register, or stay home, or skip particular races. No one suggests that we ought to abandon all elections and turn them over to “experts” to decide. So why all the angst about judicial elections?
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