How Texas Selects its Judges.
Judicial campaigns rarely get much publicity and rarely generate much interest from the general public. The only people who really care about judicial races are the trial attorneys and the litigants. Judges must panhandle campaign contributions from the lawyers and parties who appear in front of them. Judges ought to be above the fray, but in reality they have to get down and dial for dollars if they want to be elected. The only parties who tend to make serious contributions are those accused of serious wrongdoing who are seeking someone to give them the civil equivalent of a get out of jail free card. In today's economy no law firm donates $30,000 to a Judge wanting that person to be fair--they want that Judge to rule their way.
For most people, two million dollars is a lot of money. So why would someone spend two million dollars to get elected to a job that could never pay them that kind of salary and benefits even over a six year term? Two million dollars barely scratches the surface of a properly funded statewide campaign, yet it is the suggested maximum for statewide judicial candidates. On the other hand, two million dollars is chump change for the multinational corporate PACs and their CEOs seeking to influence a judge who can set precedent that will protect them from a multitude of sins.
The common citizen who can not afford to contribute has the deck stacked against him. The difference in discretionary rulings can be the difference in what the jury hears and ultimately who wins and who loses a jury trial--and none of those discretionary rulings are reversible error absent an abuse of discretion. The difference in a discovery ruling that compels disclosure of a smoking gun or protects it under a privilege or finding that the question was too broad or vague can decide the outcome of the case before a jury is ever impaneled.
As bad as electing judges may be, appointing our judges leads to worse cronyism. Anyone who has practiced trial law for long has come across a judge that got appointed as a political favor. This is not the basis for a fair, equitable and impartial judiciary.
Anyone who has practiced law for long has come across a judge who does not know the law. When the Texas Constitutional provisions setting forth the requirements for judicial office were written there was no board certification process. But now that there is, we need to change the requirements. Of the over 70,000 lawyers in Texas only 7,000 are Board Certified. If a judge can't pass a board certification examination, should he or she really be a judge? The board certification program goes beyond just a rigorous examination and includes references from peers and proof of actual hands on experience. The appellate judges have final say and interpretation of what the law in Texas is, and they ought to be Board Certified.
Texans need to bring integrity fairness and quality to the judiciary by A. Amending the constitution to increase the requirements for judicial office to include board certification, and B. Initiating legislation for public financing of judicial campaigns. As long as we have unqualified judges taking money from the litigants and lawyers who appear in their courts we will continue to have the perception that Justice is for Sale. Texans deserve better. The citizens of Texas deserve fair judges who determine cases on the facts and law not on the size of the litigant's bank accounts and campaign contributions.
