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For Populist-Style Reform of Judicial Elections BY JAMES C. HARRINGTON SINCE 1836, the method of selecting judges in Texas has been a matter of great debate. In fact, Texas has experimented with both elective and appointive methods of choosing judges. The Constitutional Convention in 1875 grappled with three questions about the judicial system: whether the courts should be activist in nature, or have narrowly circumscribed power like the legislative and executive branches; whether the people should select judges directly by partisan election; and whether trial judges should come from single-member districts. The battle raged between the forerunners of the soon-to-emerge Populist movement and the mainline Democratic Party. With the pre-Populists stood the farmers \(mainly struction Republicans, and the minorities together by their fear of diminished selfrule, abhorrence of a domineering central government, and loathing of monopolistic railroads and corporations. The pre-Populists won and designed a judiciary article which favored activist judges and which checked their power through direct election by the people \(whom the new Constitution permitted to vote member district court regions. us with the best of two systems: an appointed federal bench to tackle the polarizing issues which require judicial isolation from the ire, whims, and misunderstandings engendered by majority rule, and a state judiciary, directly accountable to the people, structured both to handle Texans’ day-to-day problems and to protect the liberties laid out in the Texas Bill of Rights. Those goals remain as legitimate and vital today as they were at the end of the last century. However, four structural reforms would help promote fidelity to the noble charter of our 1875 forebears \(whose vision of James C. Harrington is Legal Director of the Texas Civil Liberties Union. His views here do not reflect those of the TCLU, which has taken no stand on the issue of electing judges. Harrington is the author of a recently published work entitled The Texas Bill of Rights. democracy was tempered by the bitter election by single-member districts; second, fixing the length of judges’ terms; third, appointment to vacant benches; and, finally, campaign financing reform. SINGLE-MEMBER DISTRICTS The time has come to elect judges, at all levels, by single-member districts. Texas should be divided into nine supreme judicial districts, equally populated, from which the people would elect one member for the Supreme Court and one member for the Court of Criminal Appeals. The division criteria would parallel those used to implement the federal Voting Rights Act in order to assure diverse, broadbased, and minority participation. The current 14 intermediate appellate districts should be redrawn into equally populated districts with six judges in each district. Each district would itself be divided equally into six regions whose voters would select one appellate judge. Again, Voting Rights Act criteria would apply. justice courts would be divided according to the county commissioner precincts, as redrawn after each census. The terms of the three appeal judges would be staggered so that only one would stand for election every two years. The same would be true of district court benches. Thus, a county with 12 district courts would choose one judge from each commissioner precinct every two years, instead of the current 12, plus as many as ten appeals-level judges. The benefits are manifest. The oneperson, one-vote principle is vindicated. Minority participation and geographical diversity are preserved. The ballot would be significantly shorter and candidates chosen from closer to home, giving the electorate greater familiarity with the officeseekers, thus minimizing undeserved electoral turnover. Also, a small campaign area should demand less funds and less campaign time away from the bench for incumbents. FIXED JUDICIAL TERMS Another step is to fix all judges’ terms at six years, which would eliminate ballot overload and help bring stability. Where a judge is appointed to a vacancy, the six year period would begin with the next election, thus eliminating marathons like that of Justice Ratil Gonzdlez who had to campaign in a primary, run-off, and a general election to fill a vacancy and, two years later, face the same daunting prospect for a full term. That likewise means less campaign money, more time judging, and greater continuity in the courts. One requirement should be added for incumbents seeking a new term completion of 20 hours of judicial training each year of the previous term. APPOINTMENTS Most judges initially come into office through appointment because of their predecessors’ death, retirement, or resignation \(or When a vacancy occurs, the new judge would be chosen by the state legislators representing the intermediate appellate district \(or supreme judicial district, if no candidate clears a two-thirds majority by the third ballot, the governor would select from among the top two vote-getters on the third ballot. Letting legislators instead of the governor fill a vacancy is preferable because the former are closer to local political desires and better acquainted with candidates’ qualifications. Because the record of minority appointments is not good, the legislators’ choice would be guided by Constitutional admonitions to assure a demographically balanced judiciary. The Supreme Court would also publish yearly a list with the current demographics of judges by region vis-a-vis its cross-section and the last year’s appointments in the region. CAMPAIGN FINANCING Because paying for elections has received the most public scrutiny of late, notably by the Texas Research League, only a few observations are necessary here. We kid ourselves if we think that an appointive system removes the influence of money. Such a system only drives contributions into the closet, directing them to the governor or other officials who are later called upon in favor of a chosen candidate. Federal judges are often selected this way. It is better to know from where THE TEXAS OBSERVER 11