The fact that a new commission to study judicial selection in Texas even met last week was an achievement in itself.
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The last time the Legislature created a commission to study the way Texas judges are picked, in 2013, it didn’t convene a single time. The last time a bill to overhaul the system made it through either chamber of the Legislature was a decade before that.
“We have one difference today,” David Beck, the commission’s chair and a former president of the state bar association, said on Thursday as he kicked off the inaugural meeting. “We’ve got a governor that is very supportive of these efforts.”
But shortly after that hopeful first meeting, advocates learned that there may be a similarly powerful Republican state leader on the other side of the issue: Lt. Gov. Dan Patrick.
Texas is one of just six states that elects all of its judges on a partisan ballot — a system rife with potential conflicts of interest, as lawyers write campaign contribution checks to judges they may appear in front of weeks later, and voters select between partisan candidates who promise to serve impartially once seated on the bench. The system has also triggered perennial “sweeps,” when an entire party slate wins election with little differentiation among candidates with varying experience levels and qualifications, most recently in 2018, when Democrats overtook courts in the state’s urban areas, and some 400 new judges were swept into office.
Good government advocates, attorneys and many judges themselves have long agitated for a new way, but the issue has proved intractable at the Capitol — in part because voters are loath to give up their voice in the process (even though few know anything about the candidates they are selecting between) and in part because the party in power has little incentive to alter a system that’s working to its advantage.
In a Friday afternoon press statement, Patrick showed major skepticism of the group’s efforts. That position could doom the proposal, which cannot become law without major buy-in from the Senate he leads.
“Texans feel strongly about voting for their judges,” Patrick said. “The commission will need to make a compelling argument to the people and legislators to change the current system. I do not believe that support exists today.”
A major revamp of the judicial selection system would require a constitutional amendment, meaning a bipartisan two-thirds majority would be necessary in each chamber of the Legislature. That would be a hard hurdle to clear if Patrick were merely apathetic toward the proposal; it will be nearly impossible if he is opposed. If a constitutional amendment made it through the Legislature, it would still require approval from Texas voters.
Patrick’s comments are just the most significant headwinds yet for an effort that was never going to be easy.
Perhaps no one is more aware of the challenges ahead than former state Sen. Robert Duncan, the Lubbock Republican who muscled a reform bill through the Senate in 2003. He sat on the perimeter of the room last week as the commission met for the first time.
Duncan, who said in an interview Tuesday that he had not seen Patrick’s comments, emphasized that “it’s critical to have all three leaders on board” given how difficult the issue is politically. But he said he remains optimistic that the commission will put forward a solution that a majority can rally behind.
“The lieutenant governor is exactly right: It’s not easy,” Duncan said. “The public will need to be educated on the solutions. The solutions are going to need to be very carefully crafted.”
The commission is charged with examining the current system from all sides — Should judicial elections be partisan? Should judges be elected at all? — and presenting a report to the Legislature before it reconvenes next January.
Patrick’s comments apparently referred to a moment about an hour into the committee’s hearing when Beck, the chairman, took an informal, initial survey.
“Let me ask this question of the group, and I’m not trying to commit people to a position, I’m just trying to get a sense of where I think we are in the process,” Beck said. “Is there anybody who believes that partisan elections are the way to go?”
No hands went up during a brief silence. Then state Sen. Joan Huffman, a Republican who once served on the bench in Houston, chimed in.
“I’m not convinced they’re not,” she said. “I have an open mind, but I feel like I have to speak for a lot of people.”
“And we haven’t even had the hearings yet,” cautioned state Sen. Robert Nichols, R-Jacksonville.
Patrick said in his statement that he was “surprised by news reports today indicating there may be support for abandoning the long-time democratic practice of partisan election of judges.”
“I expect the members to have an open mind on every issue,” he said.
Sen. Brian Birdwell, a Granbury Republican who missed the commission’s first meeting to attend a funeral, also telegraphed that he would hesitate to take judicial selection out of voters’ hands.
“There is no greater principle than the consent of the governed – including the ability of citizens to vote for their judges,” Birdwell said.
Beck told The Texas Tribune on Tuesday that the commission “did not make any judicial selection decisions” at its organizational meeting.
“I firmly believe the commissioners will keep an open mind as we discuss the various alternatives the Legislature instructed us to consider,” Beck said.
Opposition on the Republican side is all the more significant given Democratic opposition is likely, too. Many Democrats are skeptical of any Republican efforts to alter the judicial elections system so soon after the system proved highly successful for Democratic judges in the 2018 elections.
In 2019, Democrats killed a proposal that would have allowed the governor to appoint judges in big cities that lean toward Democrats, and left the partisan election system in place in the more rural counties that trend more Republican. Abbott had quietly backed the proposal — which critics said would have centralized power in his office and allowed him to appoint conservative judges whose terms might well outlast his time in the Governor’s Mansion — but it died for want of bipartisan support.
The commission is set to reconvene in February. Beck also created three subcommittees to study judicial selection methods. One group will focus on elections, vetting the advantages of non-partisan and partisan ballots, as well as the usefulness of retention elections. A second will examine the pros and cons of selecting judges by appointment and confirmation. A third will explore what role citizen panels might play in an appointment system, and also mull changing the current qualification requirements for Texas judges.
“I’ve been down this road — it’s not easy,” Duncan said. “But I don’t think anybody can disagree that what’s happening now is not good, and what’s happening now is not in the best interest of our state’s economy or even liberty… We need to make sure we have a process for ensuring that we have the best and most qualified people on the bench.”