The Chief Justices’s “State of the Judiciary” Speech
There is a lot to say about the state of the judiciary; unfortunately, Chief Justice Wallace Jefferson did not say it. His remarks to the Legislature were mainly feel-good comments about task forces that the Court has formed and a plea for merit selection of judges, echoing previous calls for reform by his immediate predecessors, John Hill and Tom Phillips. You can link to the speech here.
Is merit selection a good idea? Certainly it has been successfully implemented in other states. The way merit selection works is that when a vacancy occurs on an appellate court, a nonpartisan commission proposes the names of several judges whom they have deemed worthy and sends them to a decider, usually the governor, who selects the new replacement from the list provided. At the end of his term, the replacement judge, if he desires a second term, faces an election in which the issue is whether he should be retained. This process raises the tricky issue of Quis custodiet ipsos custodes? — Who shall guard the guardians? Maybe this is not a problem in other states where politics is polite and gentlemanly, but Texas politics does not fit this description. We play hardball here. It is likely that the commission will be chosen by other politicians, that it will not be nonpartisan, and that the decider will try to influence its selections. I find this prospect sufficiently worrisome that I believe that merit selection legislation should have a sunset date — say, twelve years — in case the process is compromised by politics.
The reason why merit selection has never come to pass is that the whichever party is in power has no interest in changing the rules of a game that they are winning. These days, Republicans win all the statewide races, and Democrats win the urban courthouses and gain seats on regional courts of appeals. Justice Jefferson lamented the sweeps of urban courthouses (in Dallas in 2006 and Houston in 2008) and Republicans, who have been the party that has killed merit selection in the past, applauded. I read the bill that Robert Duncan has filed, and it applies only to appellate judges, but it could be amended to apply to district judges. I agree with the Chief Justice that the urban sweeps, driven by straight-ticket voting, are a problem, but Republicans lived happily by that sword for many years and have only considered it a problem when they are dying by it.
The irony of Jefferson’s speech is that the biggest problems of the judiciary are exemplified by his own Court. It is biased in favor of defendants; it has a poor record of clearing its docket; and it has several judges who are facing ethics complaints. It is apparent that judges gamed the campaign finance rules by claiming reimbursement for unsubstantiated “campaign trips” that are really commutes to their residences. The Legislature could eliminate this problem by allowing judges to be reimbursed for travel from funds appropriated for the purpose.
Both the Dallas Morning News and the San Antonio Express-News have criticized the Court for its backlog of cases. The most extensive study was compiled by Texas Watch, a judicial watchdog organization. Some of its findings:
* The Court took an average of 852 days (2.3 years) to dispose of a case in the 2006–07 term, an increase of 24 percent from the 2004–05 term.
* Justices took an average of 416 days to write an opinion after the Court heard oral arguments, a 31 percent increase from 04–05 to 06–07.
* The Court’s backlog has steadily increased from 14 in fiscal year 2000 to 60 in fiscal year 2007, an increase of 328 percent.
* The Court has left 72 cases pending for more than a year. An additional 31 cases have been pending for more than two years.
Will merit selection solve these problems? One could argue that the current method of electing judges does a better job of providing accountability because foot-dragging and other problems are more likely to come to light during the course of a campaign.
I realize that the chief justice could hardly use the occasion of his speech to criticize his own Court. Nevertheless, the Court is symptomatic of the problems of the judiciary. As Republicans face increasing challenges from Democrats, issues like judicial selection are going to come to the forefront as the GOP looks for ways to hold onto power. Whatever the merits of merit selection might be, it is inevitably going to be seen by Democrats as a way of keeping their party on the outside looking in.
Tagged: chief justice wallace jefferson, merit selection, robert duncan, state of the judiciary, texas appellate court
Pink is John Galt says:
Merit selection, with proper checks and balances, is actually a worthy proposition and may solve some of the problems cited by watchdog groups. If objective factors are put into place, such as certain base requirements — with NO subjective workarounds — the calibre of justices could be maintained. For instance, rather than allow a completely subjective process of selecting candidates that the commission deems “worthy”, candidates must first at least meet basic objective criteria, such as years in practice as well as number of cases before the court, numbers of oral arguments before the court, etc. A pure election process, for example, doesn’t always require this to be the case. Under either elections or a merit selection without objective criteria, a justice could have literally no experience on an appellate court, or no meaningful experience. This problem is rampant and easily seen all over the state with respect to district and county court judges. One could argue that the increase in number of cases seen by the appellate and Supreme Courts could be due to an increasingly inexperienced lower judiciary. Having basic objective criteria would help limit purely subjective selections under the merit system.
Additionally, I don’t think that one can truly look at the statistics of how long cases are taking to get through the system without looking at whether the types of cases, as well as the number of cases filed, has changed over the time period being examined. Texas has seen not only significant tort reform, but also an explosion of insurance cases during that time frame. Has the Supreme Court since the 2004-2005 term thus seen an increase in cases, and what types of cases are they? Although tort reform would arguably reduce the number of cases making it to the Court, it might actually have a reverse effect in the short term as the Plaintiffs’ bar takes cases up to test the new reforms or to try to get a few last favorable opinions. The explosion of insurance cases might result not only in additional cases getting to the Court, but also the inevitable mandamus issues on discovery and such. I don’t know the answers to these questions, but I think they need to be asked in order to decide if the Court itself is to blame for the increasing backlog and time to resolution, or if other factors are at play. Even if the increased number of cases filed are not being heard by the Court, a significant amount of time could be involved in administering cases that never see the light of day at the Court.
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Anonymous Liberal Lout says:
I don’t doubt that objective criteria could be identified to define the pool of qualified potential judicial appointees. However, things like the number of appearances before the S.Ct. I don’t think should be a requirement.
Most lawyers have practices that keep them away from court–that doesnt’ mean they wouldn’t be fine jurists.
The appellate lawyers with the most appearances in front of the S.Ct. also tend to be the ones that have high dollar clients that can pay them to be there. Necessarily, these guys and gals would have more experience representing large, rich clients, rather than the common man. Some exceptions, of course, like the A.G.’s and Solicitor’s offices. But, overall, the bias is firmly tilted toward the monied classes.
There are some lawyers who have vast experience with the courts, but have never argued a case. These folks, the clerks (the lawyers who work for the justtices), clearly know how the courts work, and how the law works, frquently better than the justices themselves.
My point, I guess, is that if we do go to an appointment/retention system there should be few hard and fast criteria for who is deemed “qualified.” The Bar, currently, rates justicies by their experiences and reputation. There’s little reason to move away from that system in an appointment system. And certainly, there’s every reason NOT to set up a “qualification” requirement that engenders the same biases the S.Ct. exhibits now.
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anonymous says:
Paul, this was a very well written and thought out post. I’m one that has no hesitency in pointing out your errors, so it’s only fair you get praise when you put one right over the plate.
One problem in the past with judicial reform is that Tom Phillips or groups supporting this idea (merit selection) have tried to serve up the entire enchilada at once. It was a meal that Texans weren’t willing to order up.
The incremental approach is the only logical way. Perhaps a trial run or a phased in approach might work before it is expanded or rolled out – the Appellate Courts, the Court of Criminal Appeals, etc. Something easy that people can get used to and measure the performance of merit selected judges vs. judges elected by partisan ballot.
Flexibility and patience are what may be needed to see if this bird really does have wings.
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Pink is John Galt says:
I agree wih A.L.L. that the clerks are imminently qualified. In many instances, the clerks run the place — in a good way. I would agree that clerkship would be an additional qualification. Justice Pemberton is an excellent example of an attorney who gained an indispensable wealth of experience with the appellate courts prior to ever having a case.
I am not sure that I completely agree that the lawyers with most experience before the appellate courts represent the monied classes, however. Again, if we take the insurance cases for example, I think that there are a lot of appellate cases brought by the Plaintiffs’ bar, who clearly represent the non-monied classes. Additionally, the reality is that appeals are relatively inexpensive in relation to trials, and thus are often pursued by the losing party as a settlement tool, or, unfortunately, as malpractice protection. If, however, you mean that the attorneys bringing the most cases are affluent, perhaps I agree with that. Again, I would like to see more statistics on what types of cases are currently clogging up the system, who is bringing them, and whether the Supremes are granting cert or not on them. I am also curious as to how many cases are being reversed/remanded/modified/rendered versus affirmed. This goes to my argument that it seems that the lower judiciary is becoming less qualified.
As for the Bar rating their justices, I personally don’t see that as a good system for deciding who is and is not “worthy.” While it may be a good additional factor, I think it is inherently flawed. In addition, it would not be helpful for appointment of new justices who have obviously never been rated.
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slick says:
Paul, are you aware of a link to the actual text of his speech? I’d like to see what he had to say about some of the perenial problems in our justice system beyond those that made the headlines.
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Gritsforbreakfast Reply:
February 12th, 2009 at 12:16 pm
Here’s a link (pdf) to the full text. I’d offered some initial commentary on the criminal justice-related topics here.
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Frank Perez says:
Burka, I think the Texas GOP knows that 2010 is likely their LAST sweep of statewide offices because by 2014, the Democrats will start likely winning down-ballot statewide offices, including some seats on the Texas Supreme Court.
Jefferson is posturing himself for a statewide promotion to Texas AG in ’10 since Abbott is likely running for Senate or Lieutenant Governor.
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Jim says:
Why should the pool of qualified appellate judges be limited to appellate lawyers, court staff, and one or two assistant AGs? Seems like the folks who really have the most to offer on an appellate bench are the lawyers who are in the trial courts all the time on discovery issues, dispositive motions, and jury trials.
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Don Cruse says:
Paul,
You’re right that “merit selection” is a fine phrase that often becomes unworkable in the details. But I don’t know of any proposed plans for Texas yet.
Senator Duncan’s bill is assuredly not any more “merit selection” than is the current system of interim appointments. My quick reaction to the speech and Duncan’s bill is here.
There must be some constitutional design that can work for the Texas judiciary and that checks the power of individual groups over the selection process. (New York is a state with brutal politics, and their system — which works like you describe — seems to have made everyone almost equally mad when choosing their new Chief Judge. Perhaps that deserves a look.)
If you have a more Texas-appropriate plan, you should contribute it to the fray.
The docket statistics you cite, by the way, have been debunked elsewhere (including on my blog). In a nutshell, those stats selectively choose only the very longest pending cases — those over which the Court chose to exercise its discretionary review. As people who practice before or have clerked at the Court know, the vast majority of cases roll to a quiet “petition denied” just a month or so after being filed.
Otherwise, your criticisms of the conduct of individual Justices seem to boil down to, “Some of them are acting too much like politicians!”
If so, let’s change that — by changing the political system in which they are now forced to operate.
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GOP Realist says:
What Don Cruse said.
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Pratt on Texas says:
Senator Robert Duncan is once again trying to take away your right to elect the judges of your choice. His bill, SB782, is toned down to a more incremental method whereby we would let all appellate level judges be appointed. Past efforts had all levels of judges being appointed.
Duncan and his elitist legal-eagles claim that campaign donations in judicial campaigns sully justice in Texas and make us look bad. The argument sounds very convincing until you examine the issue.
Duncan’s argument is rooted in the long-held belief of legal-elitists that we common citizens are not smart enough to elect the judges who sit in judgment over us. Certainly we are smart enough to elect Senator Duncan, and any office holder who would be appointing judges, but we just don’t know enough about legal matters to take these decisions without their wise guidance.
The problem with the appointment plan is that it does not provide the claimed benefits. The appointment of judges does not remove the influence of campaign donations from the courts rather; it hides the influence by laundering donations through the campaigns of those who make judicial appointments.
Advocates of judicial appointment have never been able to explain how you keep political donations, to those who make the appointments, from being used to win appointments to the bench for favored people. Duncan’s system may make things “look” better to the uninformed but appointment provides no real clean-up of anything.
Duncan’s appointment system takes an unseemly, but open process of political donations we can all review during a judicial campaign, and turns it into an unseemly but hidden process we cannot see.
Beware lawyers who think you are too dumb to run you own courts.
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Anonymous says:
That Frank Perez/MTD just doesn’t quit trying to prove to us how smart he/she is about who’s gonna run for what – even if they are completely irrational thoughts.
Must be in the water at Shoal Creek Hospital.
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