"Putting courts into politics, and compelling judges to become politicians, in
many jurisdictions has almost destroyed the traditional respect for the bench,"
one commentator famously wrote on the causes of popular dissatisfaction with
the administration of justice. And this was back in 1906. For most of the
century since that time, lawyers, judges, law professors, and other court
reformers have wrestled with the problem of how to select judges in a way that
remains consistent with American democratic traditions and still obeys the
Currently, there are six methods of selecting judges, each variations on three
basic models: appointment, election, and a third idea--"merit selection" that
has been the major "reform" alternative of this century. First conceived in
1913, but not adopted in any form by a U.S. state until Missouri voted for it
in 1940, merit selection, one observer remarked, "did not immediately sweep the
country." This is an understatement: The next state to follow Missouri was
Alaska in 1956, and this was after New Mexico only mustered 37.1% of its voters
in a failed bid to adopt the reform. Over the next several decades, at least
ten different states failed to get more than 50% of its voters to support
"merit selection" when it appeared on the ballot.
What are the merits of merit selection? What can be learned from one states'
attempt--Texas'--to try to reform its manner of judicial selection? If the
nineteenth century saw the undoing of the Founding Fathers' vision of an
appointed judiciary, and the twentieth century has been dominated by debate
over the merit selection reform, what will be the shape or nature of reform in
the new millenium?
The justice system in Texas has been scrutinized for over a decade since a
major television expose probed the influence of campaign money on judicial
decision-making. Now, with Texas Governor George W. Bush running strong for
president, everything about the state, including its courts, is being examined.
The Governor has been unequivocal in his support of judicial elections as the
way to select judges in Texas, but others in the state--including many who are
intimately involved or high-placed in the system--are searching for
alternatives. (Note: Texas is one of three states whose judicial election
process was examined in FRONTLINE's "Justice For Sale" report.)
a Texas legislator talks about the politics and big money in Texas judicial races and why he
would like judges to be appointed, not elected.
Dissatisfied with the conduct of partisan judicial elections in his state, Texas State Supreme Court Chief Justice Phillips argues for campaign finance reformto limit money's influence in the races.
A lobbyist for the Texas Medical Association explains how his organization
spearheaded a campaign to take back the Texas courts after decades of a "pro-plaintiff" majority.
A lawyer and former Chief Justice of the Texas State Supreme
Court, Hill left the Court in 1988. He now works with a non-profit group pushing for the appointment of judges in
For years, Texans and court-watchers nationwide have formed strong opinions
about the quality of justice in Texas. But what do the states' judges,
lawyers, and court personnel really think? The revealing answers come in this
last phase of a comprehensive study by the Texas Supreme Court.
This study of trust and confidence in the Texas courts and legal
profession was conducted in response to the growing perception that citizens'
respect for the courts and the legal profession had weakened. The results
provide a surprising counterpoint to the views of the "insiders."
Over ten years after 60 MINUTES aired a report on judicial corruption in
Texas, this study conducted by Texans for Public Justice concludes: "While the
faces and ideologies of the justices and their paymasters have
changed--justices continue to take enormous amounts of money from litigants who
bring cases before the court. . . justice is still for sale in the Texas
How even a relatively minor change in the conduct of judiciary elections in
Texas proved too big a step for Governor Bush
For more than 75 years, reformers have been arguing the merits of "merit
selection" of judges. In a recent, comprehensive study, Jona Goldschmidt of
the American Judicature Society weighs all of the evidence, pro and con, and
still comes down strongly in favor of the judicial selection reform.
Acting on the report of its Task Force on Lawyers' Political Contributions, the ABA amended its model ethics code to impose contribution limits and disclosure standards on judges campaigning for seats, as well as requiring judges to disqualify themselves from hearing cases involving parties who have contributed to the judges' campaign in excess of the established limits.
In the Summer of 1999, the American Bar Association affirmed its commitment to
the merit election of judges, and urged all jurisdictions to enact
constitutional provisions setting out procedures for the merit selection and
either appointment or retention election of their judges
In 1999, Ohio, one of the state leaders in judicial election reform, enacted tough new rules for judges and lawyers involved in judicial campaigns. In recent years, other states have also explored different reform options.
The Federalist Society is a conservative lawyers' group located in Washington, D.C. This white paper on judicial selections argues that partisan judicial elections have "substantial advantages over the alternatives not least in that they provide an additional, significant measure of self-government to voters."
(Federalist Society, 2001)
In this article for the Cato Institute, a libertarian research group, author Robert A. Levy says that "there may be good arguments for merit selection of judges followed by periodic, unopposed retention elections. But contested elections raise serious questions. They've become inordinately expensive, create a perception of impropriety, and may produce judges beholden to deep-pocketed donors with recurring business before the court."
(CATO Institute, Aug. 13, 2001)
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