Making Democracy Work

Judicial Selection

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Resource:

  • Brennan Center for Justice " Fair and impartial courts are the guarantor of equal justice in American constitutional democracy. The very legitimacy of the courts depends on the public belief that judges will treat every party without bias or favor, and that any party, regardless of wealth or connections, can have a fair day in court...."

Acronyms: What Does That Mean?

Position LWV-TX

JUDICIAL - 1960, 1965, 1983, 2001, 2003, 2006, 2009 The League of Women Voters of Texas supports an effective, independent, qualified, and inclusive judiciary for Texas, which includes:

  • a uniform fiscal policy as part of a single system of centrally administered statewide courts

  • a single system of centrally administered statewide courts with a uniform fiscal policy

  • assignment of judges according to special training and docket needs.

The League supports the selection of judges in the following manner:

  • nomination by a diverse, representative, nonpartisan commission, with appointment for a specific term or appointment by the governor for a specific term

  • judges are subject to retention or rejection in an unlimited number of periodic nonpartisan elections

  • this should apply to Texas Supreme Court, the Court of Criminal Appeals, and Courts of Appeals

  • selection of state district court judges may be by non-partisan election or by appointment/retention

  • judicial campaigns should be funded with public money.

Position LWV-US

Issue Studies

Explanation: Judicial

In 1958, the League adopted nine principles for a good constitution, one of which was "Provisions for justice with a minimum of delay," and in 1959 undertook the initial study of the judicial article as part of its work for general constitutional revision. Consensus was reached in the areas of court structure, court administration, and court financing.

In early 1965, the position on the selection and tenure of appellate judges was adopted. Members again looked at selection of judges in 1982 and, by February 1983, included district judges in the position on judicial selection. Every regular session of the legislature in recent years has produced bills regarding the selection of judges. None has passed.

Following delegate debate at Convention 1999, the Periodic Program Review (PPR) Committee was assigned review of the Judicial position, especially regarding judicial selection, and the following recommendations were adopted at Convention 2001.

Since centrally administered statewide courts have been in effect since 1985, the wording in the first bullet was reversed to reflect emphasis on the need for a uniform fiscal policy. (There is still disparity of funding levels among various appellate and district courts.) The PPR committee had suggested dropping the position regarding assignment of judges according to special training and docket needs, but during the Program Planning process, local Leagues recommended retaining the position since it is used for advocacy at the local level for specially trained judges, such as in family courts.

Delegates at the 2001 Convention, at the PPR committee's recommendation, also voted to drop the position regarding effective removal procedures for judges. The state constitution provides for removal procedures through a State Commission on Judicial Conduct. This provision was added to the constitution in 1965, after the League's initial study/consensus in 1959-60. Thus this bullet has been achieved.

Although it is conceivable that the removal process could be thwarted by a legislative effort to cut off funds to the Commission, LWV-TX does not need to retain the position in order to address such a situation. The overarching statement of the Judicial position and/or the League principle that "efficient government requires competent personnel" could be used to advocate effective judicial removal procedures.

Judicial Selection:

The 2001 convention approved a restudy of judicial selection. A committee restudied the issue producing a Facts and Issues entitled JUDICIAL SELECTION IN TEXAS: Nothing' s Perfect. Limited consensus was reached in the fall of 2002 and approved by the LWV-TX Board in January 2003. That consensus continued to support the appointment of Texas Supreme Court and appeal judges, but for local judges Leagues only agreed that if judges are to be selected by an election, it should be nonpartisan.

At Statewide Conference, March 2009, a bullet was added to clarify our position on district judges in order to lobby more effectively and to provide flexibility to work with legislators to reform the way judicial offices are selected in Texas.

At Convention 2010, delegates voted to add the provision that judicial elections should be funded with public money, although this is covered in our position on Political Campaign Process.

-Texas Judicial System (brochure)
-El Sistema Judicial de Texas

History of LWV-TX Action

History: Judicial

1985: The legislature passed a constitutional amendment that addressed the League position of centrally administered statewide courts. The League supported this amendment, and it was adopted by voters.

1989-1995: Merit selection (or election, as some call it) has been an active issue for LWV-TX during this period. Reform efforts have been spurred and complicated by federal lawsuits challenging the at-large election of district and appellate judges as a violation of the voting Rights Act because the system dilutes minority votes. The most recent development in this lengthy litigation is Texas' appeal from a U.S. Justice Department finding that countywide partisan election of judges in the major urban areas infringes minority lawyers' right to win seats on the bench under the Voting Rights Act. Using the League of Women Voters of the United States (LWVUS) position supporting the Voting Rights Act, LWV-TX has supported single- member judicial districts as part of a merit system plan.

In the 1995 legislative session, the League lobbied in support of Senate-passed measures that called for appellate judges to be appointed by the governor with approval by the Senate and subject to retention/rejection elections on a nonpartisan ballot; and for district judges to first run on a nonpartisan ballot and then face retention/rejection elections for the next two terms. The House, however, failed to pass the Senate's reform initiative, instead reporting out of committee a version that included partisan elections. This version did not reach the House floor.

During the 1995-1997 interim, the League was represented on the newly created Commission on Judicial Efficiency. The Commission, appointed and chaired by Texas Supreme Court Justice Tom Phillips, was charged by the legislature with studying various issues related to the state judiciary, including judicial selection. The commission made several recommendations but their most significant success was their recommendation for the creation of a Judicial Committee on Information Technology, which passed the legislature with funding. The 15-member committee, made up of judges, court personnel, legislators, attorneys, and citizens will gather information for a statewide network and justice information system.

1997: The House passed a bill changing appellate judicial selection to nonpartisan elections, an attempt to move the procedure at least one step away from the current partisan election system. The Senate companion bill differed, proposing an appoint/elect/retain system for appellate judges. This bill failed and time did not permit the Senate to take up the House bill.

2001: Legislation was introduced, supported by the League, which offered a viable, nonpartisan approach that would have reformed the electoral process for the selection of the chief justice and justices of the Texas Supreme Court, and the judges of the Court of Criminal Appeals. The bills would have required nonpartisan judicial elections of the highest courts in the state. Candidates would have sought certification from the Secretary of State to be put on the ballot and would have been required to submit a petition signed by 1,000 registered voters in connection with a request for public financing. Testimony given during the hearings on the legislation raised many issues of concern that surround judicial elections: the necessity for judges to become involved in party politics, to raise large sums of money in order to run, and the perceived influence on the system as a result. Many supported the certification process as opening the doors for increased minority participation, but testified that a selection commission could act as a barrier. The League restudied this issue in 2001-03.

2003: Following the adoption of the new judicial selection consensus, LWV-TX supported a number of bills during the 78th session. None of these bills passed, and the lack of legislative support for these bills during the session was a real disappointment. Some bills and joint resolutions (possible constitutional amendments) focused on all of the judiciary, others only on appellate judges. Both appointments, followed by nonpartisan retention elections at the end of their terms, and nonpartisan elections were considered along with terms of office and for public financing of such elections. In line with the League's new position, there is a great deal of support in Texas for the nonpartisan selection of appellate judges, but less for the selection or appointment of district judges. Opposition to the appointment of district judges was one factor leading to the defeat of introduced bills.

2005: Companion bills were introduced in the 79th regular legislative session that would provide for the appointment and a nonpartisan election for the retention or rejection of justices and judges. The bill included all appellate courts and all types of district court judges, with appointments made by the governor as currently provided for in the Texas Constitution. No hearing was held for the Senate bill, but the House bill was heard in the House Judiciary Committee. The League presented written testimony to explain the League position that supports nonpartisan election of appellate court judges nominated by a nonpartisan diverse commission. The bill was left pending in committee. The House leadership was not supportive of the issue.

We supported and testified for Sen. Duncan's bill that would increase salaries for state and county judges who had not had a salary increase since 1998. This issue had widespread support. However, after passing out of the conference committee, the bill was scuttled in the House over a dispute with an amendment that included increases for indigent defense. Although this item was not on the agenda, Sen. Duncan introduced a similar bill in the Special Session without the indigent defense provision. The League presented written and oral testimony at the Senate State Affairs Committee in favor of the bill. The committee voted in favor of the bill. It was hoped that the issue would be included in the Special Session.

2007: As in the 79th legislative session, Senator Duncan filed SB 806 with its companion SJR 32 for a constitutional amendment. The enabling bill would provide for a nonpartisan merit selection system of appointment of judges followed by a retention or rejection election of judges after a specified period of time of service. Identical bills were filed in the House. None of the bills were heard by their respective committees. However both bills contained a position the League cannot support at this time, the inclusion of state district courts judges. The bills would provide for initial appointments that would be made by the governor as provided in the Texas Constitution during the interim in 2008. The League spoke with the general counsel for Senator Duncan to ask for a filing of a bill in 2009 session with modifications that can meet the League position.

In April 2007 the LWV-TX through the assistance of KLRN produced and televised a program Conversation on Judicial Independence. 2009: In the 81st Legislative session, Sen. Duncan, supported by the League, filed an enabling bill and constitutional amendment that would provide for a nonpartisan appointment/retention system to select appellate judges. This was slightly different from previous sessions. Not included were state district judges. However, the bills were withdrawn. Subsequently, the Senator filed SB 2226 and SJR 44 to provide for partisan judicial elections in the primary followed by a nonpartisan appointment/retention election. The League remained neutral as our position for judicial selection clearly states it be nonpartisan. The bills were not placed on the Senate calendar. In the House, HB 3995 provided for a nonpartisan appointment/retention system. The League presented oral and written testimony. Although the bill was voted out of the House Civil and Jurisprudence Committee it did not pass out of the Consent Calendars Committee.

Early in the session Chief Justice Wallace Jefferson of the Texas Supreme Court made a strong case for the adoption of an appointment/retention system for judicial selection during his State of the Judiciary speech to the Legislature. Early in the same day, the League participated in a press conference with several other organizations in anticipation of the Chief Justice's speech. A group to which the League is a collaborator, Clean Elections Texas, supported a bill that would provide for public financing for judicial candidates. Although the League supports public financing of campaigns this measure was not nonpartisan as required by our judicial position. As a result, the League did not support it.

2011: In the 82nd Legislative session, Sen. Duncan filed SB 1718, which proposed filling vacancies in appellate judicial offices by appointment, partisan elections for all judicial offices, and nonpartisan elections for retention or rejection of all judicial offices. The League remained neutral as our position for judicial selection clearly states election be nonpartisan. There was a hearing on this bill in State Affairs, testimony was taken but the bill was left pending in committee. In February 2011, Chief Justice Wallace Jefferson of the Texas Supreme Court urged the Legislature to "send the people a constitutional amendment that would allow judges to be selected on their merit." He also urged "common-sense solutions to the problems that plague partisan election of judges."