Shared from the 4/19/2019 Houston Chronicle eEdition

Judgeships shouldn’t be political positions

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Bipartisan appointments could be used to select judges, with retention elections to remove poor performers.

No experienced CEO or manager would fire alarge number of high-performing employees all on the same day. But that is our norm for judicial selection in Texas.

In the 2018 election, many voters pulled the “straight ticket” lever based on nonjudicial candidates or issues at the top of the ballot. Perhaps as an unintended consequence of those voters’ call for change, around 440 Texas judges lost their jobs, according to Nathan L. Hecht, chief justice of the Supreme Court of Texas, in his February State of the Judiciary speech.

If we assume that each of the fired judges handled an average of 500 cases (that is a low estimate), that’s 220,000 cases likely delayed at a time many Texans are unable to afford the cost of resolving their disputes in court. Tens of thousands of our citizens learned that there is a change in the judges handling their cases midstream.

The 2018 judicial sweep underscored what many people in Texas knew. Texas Supreme Court Justice John Hill, a Democrat, spoke out against our current system in the 1970s and ’80s , and former Texas Supreme Court Justice Tom Phillips, a Republican, decried our system in the Chronicle in 2003. They both agreed that partisan elections of our judges are no way to run a judicial system.

Texas is one of only six states in our country relying on partisan elections to select all their judges. I have practiced law for more than 50 years and can attest that an Ror a D by a candidate’s name is not a sufficient reason to support his or her candidacy. Qualifications such as the jurist’s commitment to the rule of law, good work ethic, years of experience and temperament are far more important.

In the mid-19th century when our judicial election laws were enacted, many voters knew their judicial candidates or at the very least, one of their friends or neighbors did. Today, most voters in the major urban counties not only don’t know the judicial candidates, they don’t have sufficient time or inclination to evaluate their fitness to serve. There are just too many candidates on the ballot. It’s adifficult task even for the lawyers who practice in the major cities of our great state to do so.

To fix this decades-old problem, we need a bipartisan appointment system for judicial selection, with retention elections to remove, if necessary, poorly performing judges.

Let me be clear: No criticism of our newly elected judges is intended. In the months since the election, my firm has handled cases in front of some of the talented new judges of Harris County and around the state. Some of our new judges have ably performed their jobs from day one. But even though most incoming judges across the state have buckled down to learn the details of thousands of pending cases, ranging from complex litigation to child custody disputes to criminal matters, an abrupt judicial makeover on such a major scale can’t help leaving a legacy of unnecessary inefficiency and uncertainty and demoralizing our judges. Or as Chief Justice Hecht characterized the sweep in his February speech: Our system allowed the loss of “seven centuries of judicial experience in one stroke.”

The 2018 sweep confirms to me that almost any other system would be better than the one we have today, and I haven’t even mentioned the most distasteful part of this flawed system: money. Typically, the only parties that care enough to provide substantial funds to candidates for the judiciary are lawyers who may appear before the judges or clients who may want to influence them. As lawyers, we are proud to serve as officers of the court, but when judges have to solicit dollars to run a competitive race for election, it, unfortunately, raises in the eyes of the public the appearance of impropriety.

Judges make hundreds of decisions every day. These decisions can affect people’s lives, their livelihoods and their freedom. The makeup of the Texas judiciary should not be left to the prevailing political wind. Our state needs to enter the current century and start hiring and firing judges in a rational manner based on relevant qualifications and not on issues raised by candidates at the top of the ballot that have nothing to do with a sitting judge’s performance. Judges should be chosen and retained based on their qualifications and performance, not politics.

Beck is president of Citizens for Judicial Excellence in Texas; former president of American College of Trial Lawyers, and former president of the State Bar of Texas.

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