hedy hedy Picking judges blind-folded

October 23, 2018

During early voting as well as on Election Day, citizens will vote for dozens of judges who will affect our daily lives, from justices of the peace to justices on the state Supreme Court. But for the most part, we’ll vote blindfolded.

Harris County voters, for example, will face a ballot of 76 judgeship elections, each contested. But we don’t have the right information. The Legislature needs to step in. If it doesn’t, we should change to a different system — such as gubernatorial nomination plus legislative consent, like the federal system, or gubernatorial nomination plus vetting by a commission plus retention elections, like California’s system.

Most people will not recognize names on the judicial ballot. Even if they do, their main information will be from campaign slogans, endorsements or a political party. “Fairness” and “not legislating from the bench” are typical slogans, but no one knows what those platitudes mean. The real questions are more basic: Are judges writing opinions that report the actual facts of the case? Or making up nonexistent facts? Are they using the law that applies? Or deciding results first?

There is no clearinghouse that effectively collects information about judges who are up for re-election. There is a website called “The Robing Room,” created by lawyers for lawyers, that attempts to collect rankings and reviews about state and federal judges across the nation. It is still in its infancy.

There are also endorsements from newspapers and various organizations. These help to the extent that the endorser is giving us concrete judicial reasons, instead of its own political position. Imagine if a tort-reform group or anti-gun group endorses a judge. Is that a good thing or bad thing? Is the endorsement telling us the judge is already biased against accident victims or gun rights? Who wants such a judge? What judge wants that endorsement? We should want to hear the endorser’s specific reasons for picking a particular judge.

The Texas Commission on Judicial Conduct is supposed to investigate complaints about judges, which might be helpful to voters. But it operates in secret, is ineffective and has largely remained immune to the sunset review process. The Legislature needs to fix it.

Finally, there is voting based on political party, possibly the worst way to choose a judge because it leaves the choice to political leaders or donors. It is no choice at all. One-party dominance, last-minute political appointments emanating from the governor’s office and uncontested judicial elections are factors that keep the benefits of an elected judiciary out of reach. Austin voters will have 19 judgeships that are uncontested on this year’s Travis County ballot.

Here’s what needs to be done to provide Texas voters the information they need to make an informed choice for judicial candidates: The Texas Legislature should step in. There should be a clearinghouse of information on judges. The Public Information Act needs to be expanded to include some aspects of judicial communication. The Commission on Judicial Conduct should be made more transparent.

Bottom line: If voters are going to elect, they need better information on judges. Or we should switch to a different system.

Serafine, an Austin attorney licensed in California, New York and Washington, D.C., as well as Texas, is developing methods to improve judicial elections.