How Not to Select a Judge

Texans get to vote for a lot of offices from President of the United States down to County Constables. Many elected officials, such as Governor, Lt. Governor, State Senator, State Representative, County Judge and County Commissioner set policy. When voting on these offices, voters choose between competing policies and philosophies as well as the merits of the individual. However, there are a whole raft of offices which do not set policy and where the main qualification is the ability to do the job. In a thoughtful editorial which ran in today's Austin American Statesman, Chief Justice Wallace Jefferson of the Texas Supreme Court reminds us that electing judges is a pretty random way to find qualified and impartial arbiters of the law. "You probably don't know me but . . .," Austin American Statesman, p. F3 (March 15, 2009).

Justice Jefferson is brutally honest about the fact that he could have been elected to his position despite being an incompetent boob merely because he was on the same ballot as John McCain. (For the record, Justice Jefferson is eminently well qualified, demonstrating that a flawed system, like a stopped watch, can be right some of the time). Despite the fact that he has been on the statewide ballot three times, 86% of Texans have "never heard of" him. How informed of a decision can voters make when only one in seven have even heard of the candidate?

The Republican primary elections for the Third Court of Appeals in Austin provide a good example of why electing judges is a bad idea. In 2002, Lee Yeakel was the Republican incumbent on the Third Court of Appeals. He was well respected as a judge and was active in the Republican Party, having served as Chairman of the Travis County Republican Party. As a result, he should have been a shoo-in to receive his party's nomination to run again. However, an unknown named Ken Law filed to run against him. In this case, the catchy name prevailed over the qualified judge. Justice Law turned out to be a mediocre judge and was defeated for re-election in 2008. Judge Yeakel's consolation prize was that he was appointed to be a United States District Judge in Austin, where he continues to enjoy an excellent reputation as a jurist.

In 2004, the Republican candidates for an open seat on the Third Court of Appeals were Ernest Garcia and Bill Green. Ernest had previously served as a Travis County District Judge and had been narrowly defeated for re-election despite running as a Republican in an overwhelmingly Democratic County. I don't remember who Bill Green was, so I can't really comment on his qualifications. In the same primary, there was a race between Steven Wayne Smith and Paul Green for the Texas Supreme Court. Justice Smith had been an unpopular judge and there was a concerted campaign by Republican leaders to unseat him. Unfortunately, some Republicans were confused about which Green to vote for (with perhaps a little prejudice against the Spanish-surnamed candidate thrown in) so that another qualified candidate was defeated by someone with a more generic name.

I practice in United States Bankruptcy Court. Our judges are appointed through a merit selection process. Positions are advertised so that anyone may apply. A merit selection committee composed of judges and practitioners reviews the applications and conducts interviews and then sends its recommendations to the Court of Appeals, which makes the appointment. It is a pretty good system. Nearly all bankruptcy judges had actually practiced bankruptcy law prior to being appointed and many were recognized as nationally prominent attorneys before being selected. While it would be difficult to replicate this particular merit selection system (with judges appointing judges) outside of a specialized court, it is an example of how merit selection delivers consistently qualified candidates.

Let's hope that Justice Jefferson gets some attention in his campaign for merit selection. However, this may be difficult, since 86% of the population has never heard of him.