Voting vs. appointing judges is a ticklish subject for many Texans. In some parts, they could be "fightin" words. Texans have for too long lived under the tyranny of what can appear to be almost totalitarian rule of some federal judges. Judges with lifetime appointments are subject to no one and removable in only the rarest of circumstances. Legislating from the bench was never our constitutional framers' intentions but the activism of some judges would surely make Mr. Madison roll over in his hollowed grave. Our constitutional right to select our state judges by election is a far easier method of controlling judicial accountability.
On the other hand, the system of election has significant flaws. Flaws that some say condemn the system and require a new approach. It is no secret that we citizens don't and often cannot become informed, knowledgeable voters on the hundreds of judicial races we must vote on every two years. Unfortunately, we have occasionally elected unqualified individuals to positions of significant judicial importance. Once they get elected, the incestuous relationship forms with the litigating bar and they, like most legislators and congressmen, never get turned out. A classic justification from the lawyers giving money to the same judges they rank as unfit for public service - the worst of the lot - is a fear of making the judge mad and their clients suffering the consequences. How would you like to be before a judge when you knew your lawyer had financially supported their opponent and you knew the judge knew? Not a pretty sight! A system designed to aid the incumbent no matter the judicial qualifications, raises questions in everyone's mind.
In this current legislative session, an amendment to the Texas Constitution proposed by Senator Robert Duncan (R-Lubbock) would change the system by which some judges in Texas are selected. The proposal would affect the selection of justices on the Texas Supreme Court, the Criminal Court of Appeals and all the Texas Courts of Appeals. This measure would not affect the way district judges are selected.
Under Senator Duncan's plan, the governor would continue to appoint vacancies on the appellate courts with Senate confirmation, as is current practice. However, after having served their term, these judges would be subject to a "yes" or "no" retention election. In this type of election, voters would decide whether to keep or dismiss the judge. If retained, the judge would serve for another six years. If the judge is rejected, the process would begin anew with a gubernatorial appointment. At the end of a judge's twelve year cycle, he or she would become eligible for re-appointment by the governor and re-confirmation by the Senate.
Those who favor the measure say it would remove politics and money from the judicial selection process for those selected positions. They contend that the current system by which judges raise significant amounts of money to wage highly partisan, political campaigns undermines the ability of a judge to be impartial.
Opponents of this legislation contend that the citizenry of Texas should retain the right to choose the judges that serve on our state's courts. An appointment system places too much influence in the hands of the governor.
Constitutional amendments such as this one are similar to other bills in that they must pass the House and Senate and be signed by the governor. However, before a constitutional amendment can be implemented the voters of the state must approve the revision in the next general election.
As always, I encourage you to contact to my office with your thoughts about this issue. I know the party mantra on both sides, but I want your input on this important subject. Please feel free to write my capitol office or, you may E-mail me at kenn.george@house.state.tx.us