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.