Good morning,

Happy Texas Independence Day!

With the primary elections tomorrow, today’s Texas Minute looks at the issues surrounding “judicial selection.” Should you lose your right to vote?

– Michael Quinn Sullivan 

Monday, March 2, 2020
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• Are judges public servants, or philosopher-kings ruling over us?
      
• The Texas Constitution guarantees Texans the right to select their judges at the ballot box. In recent years, it has become fashionable in crony-elitist circles to denigrate Texas’ method of judicial selection. You can’t trust mere citizens with the courts, right? 
      
• Check out the endorsements of Texans for Courageous Courts.
         
• During the 2019 legislative session, the House and Senate voted for – and the governor signed – legislation creating a commission to study Texas’ judicial selection process. Only 11 members of the House and six members of the Senate opposed the legislation.
       
• The commission is comprised of several House and Senate members, as well as individuals appointed by the governor, lieutenant governor, and House speaker.  
       
• At the commission’s first meeting in January, several appointed members let it slip they wanted to remove the “party label” from judges. That’s been put forward in the past as the first step to taking judicial slots off the ballot altogether.
      
• Lt. Gov. Dan Patrick quickly – and correctly – rejected that notion. After all, the Republican Party of Texas’ platform explicitly calls for protecting the right of citizens to elect judges.
      
• Those who want to end judicial elections say judges should be “independent” of the electorate. But why? The citizens are sovereign in our republic, not the judiciary. Yes, the judiciary should be independent of the executive and legislative branches, but all three branches should be subservient to the law and the citizenry.
       
• Judges should have the courage to be accountable to the voters. They should lay out their qualifications and values for the citizens to vote upon, and then risk losing their offices when their judgements are scrutinized. 
      
• Several states use non-partisan “commissions” comprised mostly of lawyers to select judges. Typically, such commissions have resulted in a more liberal judiciary even if it is “non-partisan” by label. 
      
• The question becomes, “Who gets to anoint the new philosopher-kings?” Rather than seeking the approval of mere citizens and voters, those interested in judicial posts become sycophantic flatterers of the commissions and panels.
       
• Such judicial commissions and selection panels become quickly captive to big law firms, big business, and the Capitol bureaucracy. Such a system forces those who would be judges to seek the approval of Capitol insiders and cronies, rather than the citizenry.
          
• Speaking in Austin last fall at the Texas Chapters Conference of the Federalist Society, an organization of conservative and libertarian attorneys, Professor Brian Fitzpatrick of Vanderbilt University urged Texans to reject proposals implementing judicial nominating commissions. 
       

• According to research Professor Fitzpatrick published in the Vanderbilt Law Review, judicial nominating commissions produce a judiciary that is more liberal than the populations they serve. This happens, he suggests, because lawyers are significantly more liberal than the population at large. Moreover, practicing attorneys, particularly those involved in the state bar association, typically wield outsized authority on judicial nominating commissions.
      

• Nonpartisan elections produce similar results, with voters electing judges who are significantly more liberal than the population. Party labels don’t tell the whole story about any candidate, but removing them deprives voters of basic information about the ideological views of judicial candidates.

• Whatever flaws exist in electing the judiciary are only magnified and twisted in a commission-selection process.
      
• The surest way for Texans to lose our right to elect judges would be for us to stop participating in judicial races. Citizens must be asking more direct questions of those men and women who seek to don the black robe and take up a gavel. We must press them harder, and not let ourselves be intimidated by the titles.
      
• Just like presidents, governors, and school board members, judges make decisions affecting all of us. They must work for, and be answerable to, the people.
      
• Before you go vote, check out the endorsements made by Texans for Fiscal Responsibility and Texans for Courageous Courts.