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Demand Judicial Choice BY JAMES C. HARRINGTON SOME OF CHIEF JUSTICE Tom Phillips’ recent plan submitted to the Texas Legislature for changing the state’s judiciary should make its way into law, but most of it should be politely ignored. Many of his proposals are drawn from recommendations made by the specially selected Citizens’ Commission on the Texas Judicial System, over which Phillips presided and over some dissent. For example, Phillips’ concerns about lengthy election periods are on target. Indeed, the periods should be shortened, perhaps to two months before the primary and two months before the general election. And, too much money pours into judicial races, especially for the Supreme Court, as recent contests have demonstrated. The Legislature should impose a cap on overall contributions and individual contributions by persons and entities. The Texas Supreme Court is seen more and more, and correctly so, as the product of high-dollar money from interests that have cases before the court, either as attorneys or litigants. This is unfortunate because not long ago the Court enjoyed a reputation for quality jurisprudence. Severe campaign finance restrictions will help restore that reputation. The Chief Justice’s proposals in this arena, however, were scant. Phillips continues to push for merit selection of judges, even though it is contrary to longstanding Texas tradition and to the intent of the drafters and ratifiers of the state constitution, who wanted election of judges to assure their accountability to the people as protectors of their rights. During the 1875 constitutional convention, the judiciary was the only branch of government that retained plenary power and that was held in check by direct election of the people. Further, shifting from an electoral method to merit selection may well violate the federal Voting Rights Act, as the Chief Justice knows. Besides, states with merit selection have yet to show that the quality of their judiciaries are markedly better than states that use the ballot box. Recent scandals in Missouri, home of the merit selection innovation, make that point better than any philosophical argument. James Harrington is legal director of the Texas Civil Rights Project. He is representing plaintiffs in a federal lawsuit to require single-member election of state appeals court judges. The Chief Justice also argues that merit selection might enhance the current abysmal record of minority representation on the appellate courts. The appointment record of former Gov. Bill Clements, who named Phillips to his post, shows how speculative that promise is. Clements’ appointments were heavily white and male. He even managed to scare up Anglo judicial appointments in the heavily Hispanic Rio Grande Valley, with its abundance of highly qualified MexicanAmerican attorneys. Currently, there are 80 active judges on the 14 intermediate courts of appeal, but only five there are 17 retired appellate judges who still hear cases. Of them, only one is a minority person, a Mexican American. This is shameful in a state that is 25.6 percent Mexican American and 11.9 percent African American. The best way to assure minority representation on the appellate courts, including the Supreme Court, is to accept the inevitability of single-member districts. Not only would single-member districts greatly increase minority jurists, but campaigns would be less expensive because the geographic areas would be smaller. Phillips’ alternative suggestion of nonpartisan elections also should be quietly forgotten. While judges are supposed to be impartial, that does not mean they come to the bench empty of heart and philosophy. The same is true of juries. Juries are to be impartial also; but we rely on the differences in individuals and experiences to give us a cross section of the community because, ultimately, the administration of justice is a democratic endeavor. A judge who is a Republican is no more impartial than a Democratic one; but, knowing to which party a judicial candidate belongs tells us something about the prospective judge and how that judge might exercise the kind of discretion judges are often called upon, and required by law, to exercise. Nor is the problem of electoral turnover is necessarily bad. Judges may not like it, but that’s the price of democracy. \(One change, though, that makes sense is lengthening the term of wonder if the Chief Justice’s suggestion comes about because of fear of an increase in Democratic judges if the federal courts continue to insist on single-member districts. Finally, Phillips’ proposal to merge the Supreme Court and the Court of Criminal Appeals into one 14-member court, sitting in panels, with the Chief Justice having enhanced power to pick and choose on which panel he would sit, is misplaced. His assumption seems to be two-fold: Most other states don’t do it so why should we; and a single high court is always better. There is nothing fatal about uniqueness, and history shows that the divided high court system has provided better protection of Texans’ rights than an unified system. Sometimes neither has provided much protection, but generally one or the other has. A unified system would negate that potential dual protection. In fact, we witness that interplay right now. During the past few years, the Supreme Court has been very bad on individual rights, especially involving women and minority voting. On the other hand, the Court of Criminal Appeals has moved in the direction of developing protective state constitutional law. And, states with unified high courts have had unfortunate electoral results when voters, polarized around a particular criminal case ruling, are encouraged by big money campaigns to defeat the “offending” jurists. The monied interests, however, actually have hidden agendas and are after the judges for other reasons, or they are attempting to replace incumbents with judges more sympathetic to their causes. This happened in California. The Texas split system minimizes this potential abuse. The state judiciary does need reform; it always will, so long as society changes; but it scarcely requires the wholesale radical restructuring Chief Justice Phillips desires. The most efficient, effective, and democratic way to ensure the minority representation that everyone claims to want will be achieved by election of judges by singlemember districts. COMPANY COFFEE TEA SPICES TWO JEFFERSON SQUARE AUSTIN, TEXAS 78731 512 453-1533 Send me your list. Name Street City Zip 10 MARCH 26, 1993