Party Partial
Former Texas Supreme Court Chief Justice Wallace Jefferson wants to transform how judges are selected in Texas. Can he succeed where his predecessors have failed?
Wallace Jefferson has a vision. It’s not flashy, and it will probably never be realized, but it’s damn important.
In it, Texans select judges differently from how they do now. And how do Texans presently select judges? With elections. In these elections, judges run for office as Republicans or Democrats, and sitting judges raise money for their campaigns by calling on the lawyers and law firms who argue before them in court. In big election years, like presidential ones, straight-ticket voting washes waves of judges in or out based simply on who wins at the top of the ticket. In 2008, all but three Republican judges on the ballot in Harris County who had a Democratic opponent were defeated. In 2010, the reverse happened. In each case, wise, hard-working, even-tempered, independent, perspicacious judges got swept out (of course, so did some bad ones).
Jefferson, JD ’88, Distinguished Alumnus, who until recently was the chief justice of Texas, disapproves of this arrangement. Unlike with legislators, party label is a bad predictor of judicial fitness, he says. A poor proxy for merit. Judges shouldn’t be red or blue, and they certainly should not run for office with winks and nods toward how they would decide an issue that’s likely to be before them. Such a system, Jefferson says, defeats the purpose of an independent judiciary. It weakens the judicial branch when there’s little connection between a judge’s fitness for office and the likelihood of him holding it.
“Judges are no better than congressmen or state representatives or state senators,” he says. “They have an obligation to perform, and the public expects them to. So the theory is that if there is an elected judge who is not performing according to a particular voter’s ideal, then that voter can vote them out and vote somebody better in. The problem is in its application—it doesn’t work.”
What Jefferson proposes instead is a system closer to what the original Texas state constitution called for, something more insulated from uninformed voters and prevailing political winds. A group of learned and informed law-types, a commission, would evaluate candidates in a transparent process and recommend a slate of them to the governor, who appoints those he chooses. That commission then evaluates the judges once they are on the bench and recommends to voters whether they be kept or voted out. It’s a bold vision, one that led a previous chief justice of Texas, John Hill, to leave the court in order to campaign for reform full time. Arizona has implemented a system like this, one crafted in large part by Jefferson’s friend and former U.S. Supreme Court justice Sandra Day O’Connor.
Messages need messengers, and in this case, with this issue, it is worth observing that a string of chief justices, both Rs and Ds, have spoken out loudly and often that this whole system stinks. As a man who rose to the top of this system, Jefferson is an unlikely messenger of change. In March, Jefferson was named 2014 Texan of the Year by the nonpartisan Texas Legislative Conference in part for his service on the Texas Supreme Court, as well as for role as “chief of the chiefs,” leader of the group of chief justices from every U.S. state and territory.
Now a partner in a boutique appellate firm in Austin, Jefferson no longer wears the black robes of a Texas Supreme Court justice. He does, however, retain the honorary title of chief. Jefferson’s office overlooks Congress Avenue and the Capitol. In his presence, it is clear why judges are referred to as “your honor.” Jefferson left the court in October after 12 years as a justice, nine of them as chief. He was the first African-American on the Texas Supreme Court, and, of course, the first to lead it. To be chief justice, he notes, one only need be 35 years old, a lawyer in good standing, and have practiced for 10 years. There’s nothing that says you have to be qualified, and this irritates and worries him.
His successor, Chief Justice Nathan Hecht, has known Jefferson since 2001, and the two served together on the Court for years. Hecht speaks admiringly of his former leader, observing that Jefferson is “clearly a very substantive fellow.” Asked about Jefferson’s concern with electing judges, Hecht doesn’t hesitate—it’s a problem that needs fixing, he says, and Jefferson’s participation in the effort should mean a lot.
“Wallace comes to his views, like any good lawyer, after a careful consideration of the facts,” Hecht says. “Wallace believes, and I agree with him, that the drawbacks to judicial elections exceed the benefits.”
Among the main drawbacks, according to Jefferson, is the way voters select judges when they don’t know anything about the candidates. If it’s not party affiliation, voters choose based on the sound of the judge’s name. “Colors are good,” Jefferson says. Green, White, and Brown have been statistically proven to help electability. So are solid names, like Jefferson or Johnson. “But if you have a name like Yeakel, like Lee Yeakel, that’s not good,” Jefferson says. “He lost to a judge named Law. Who’s going to vote against Law?”
If it isn’t party affiliation or the sound of a candidate’s name, it’s name recognition that is the next-best predictor of how an uninformed voter might make a selection. Jefferson notes that the way you boost name recognition is by raising money. In the twisted world of judicial elections, this can cause its own seedy problem, particularly for sitting judges. A judge wanting to get re-elected needs money for TV and radio ads. “Of course the public views that with a lot of suspicion,” Jefferson says, “because the money you raise is from lawyers and parties that appear before your court. It undermines their confidence in the traditional system and in its fairness.”
A sitting judge calling on a lawyer who is set to appear before him puts the lawyer in a tricky situation. Do they decline and risk the judge’s wrath? Do they write a check and risk the challenger’s wrath?
“Some lawyers say no, strictly to avoid the appearance of impropriety,” says Doug Alexander, one of Jefferson’s law partners. “The practical reality, though, is that the system is the system. Judges require donations. As a concerned member of the bar, I want to see qualified judges get elected. But regardless of the intent, it looks bad.”
In April, Hecht and Jefferson appeared together before a Texas House committee to talk judicial elections. They gave the legislators some history. Back in 1845, when Texas was drawing up its first state constitution, this question of how to select judges demanded an answer. Among the most vocal advocates against judicial elections was C.J. Hemphill. “If we have a judiciary that is swayed by public clamors,” he said at the convention, “you are on a sea without a compass; your rights of person are not safe; your property is not safe; the reputation of your country is endangered. All is anarchy and confusion.”
Anarchy and confusion. Well, it may not be as bad as all that, unless you are someone who has had intimate dealings with Texas’ courts. But then, when entire counties-full of judges turn over on election years, it harms the state’s judicial system. In the early days of the state, voters twice voted against judicial elections. But in 1851, public opinion had shifted. According to James L. Haley’s The Texas Supreme Court: A Narrative History, it was appeals to “frontier egalitarianism” that led the people of Texas to reverse course. Judges have been elected ever since.
It is to this same frontier mentality that modern defenders of Texas’ judicial elections still appeal. A fear of uppity Austinites making decisions for Joe Voter still rules the day. “People do love to be able to vote,” says Phil Hardberger, former mayor of San Antonio and also a former judge. “We love the ability but we seldom vote. It’s an illusory freedom.” Indeed, a recent study from UT’s Strauss Center ranked Texas in the bottom half of states in civic engagement, and, in 2010, dead last in voter turnout. If Texans are so protective of that right to vote, how come we so rarely use it, and use it well when it comes to judges?
“It’s hard to tell people that you don’t want them to vote for candidates, and it’s easy to resist because it seems like you’re taking away choice,” says Jim Henson, director of UT’s Texas Politics Project. “It has the appearance of being anti-popular.”
“The theory is that if there is an elected judge who is not performing according to a particular voter’s ideal, then that voter can vote them out and vote somebody better in. The problem is … it doesn’t work.”
For advocates of judicial election reform, the prospects of change are about as likely as Texas suddenly leaping to the front on voter turnout. In other words, it ain’t likely. Voter turnout is lowest among Hispanics, which also happen to be the fastest-growing portion of the Texas population. Unless something incredible happens, the problem is likely to get worse before it gets better. It would take getting both chambers of the legislature agreeing on a new system, one then the governor would have to approve. If by some legislative miracle that happened, it would go to the voters of Texas to approve a constitutional amendment.
In the meantime, Jefferson says he intends to keep hammering away. He continues to write and speak about the deficiencies of the system as he sees it. An op-ed he placed in the Houston Chronicle reads: “Make Merit Matter,” and a recent article about his efforts in The Atlantic was called: “‘A Broken System’: Texas’s Former Chief Justice Condemns Judicial Elections.” At meetings of the state bar and legal societies across Texas, Jefferson gives his spiel, then asks how many in the room agree the system needs improvement. Hands shoot up everywhere, he says. When he asks whether they would support a Constitutional amendment, far fewer raise their hands—even among lawyers.
“I think it’s a hard road,” Jefferson says. “I wouldn’t say ‘optimistic’ because for 40 years, people have been trying to change the system. It is not going to be easy, but it is worth the battle.”
Photos by Wyatt McSpadden.
