Former Judge Mark Davidson, who often ranked at or near the top in local judicial polls, lost his bench in the Barack Obama tidal wave of 2008. He does not like what he sees now, with a polarized electorate voting along party lines, and he has no intention of running again soon.
"To run and know it doesn't matter anything about my or my opponent's qualifications – that the outcome may be determined by who is on the top of the ticket and people will vote on criteria other than my service as a trial judge – is not something I choose to do," Davidson said.
(Houston Chronicle, perhaps behind a paywall. If so, complain to the Chronicle.)
Davidson's unspoken premise is that he was reelected four times because of his service as trial judge, rather than because a polarized electorate voted along party lines. That is ridiculous.
Let us stipulate that Mike Miller, who defeated Davidson in 2008, was a poor choice, and that keeping Davidson would have been the voters' better course of action. 2008 was not the first time that judges were elected by ignorant voters pulling straight-party tickets; Davidson benefited from the system for twenty years, apparently without complaint. Only now that his ox has been gored does he realize that "a polarized electorate voting along party lines" is a lousy way to choose judges? Please.
Welcome to the party, Judge. It hasn't "mattered anything about your or your opponent's qualifications" for a long, long time.
Texas's founders wanted judges to be accountable to the voters. I'm not convinced this was a good idea—there should be a branch of government that is not always running for reelection—but doing away with the system would require a constitutional amendment. Texas's founders wanted the voters choosing judges:
Each district judge shall be elected by the qualified voters at a General Election….
What could be done without a constitutional amendment is to get the political parties out of the judicial election business—Texas's founders gave no indication that they wanted the political parties choosing judges.
What we have at the moment in Harris County is a de facto nonpartisan system: straight-ticket Democratic voters cancel out straight-ticket Republican voters, and judicial races are decided by people voting on some other basis than straight party lines.
That leaves district judges, as well as their counterparts lower on the food chain in county courts and sometimes those above them in the courts of appeals, looking very much like politicians, forced to run hard and constantly raise money. Come Election Day, there are no more sure things, even for those with the finest pedigree and reputation.
Judge Davidson seems to believe that the old system of the Republican Party choosing the judge and Harris County's Republican majority rubberstamping it somehow magically produced better judges.
But the Harris County Republican Party is corrupt—at least as corrupt as the Harris County Democratic Party. Both have picked as many losers (in the sense of "wrong person for the job") as winners. (See, for example, Janice Law and Ruben Guerrero.)
Money will affect the outcome: this is a fair criticism of a nonpartisan system of electing judges. But the criticism is just as fairly applied to any system of electing judges: money has affected the outcome of partisan judicial elections in Harris County for years, but in the primaries rather than the general election. Republican judicial candidates, for example, have paid for critical endorsements in primary races.
"The fact that good judges or bad judges all got the same number of votes would discourage anyone who thinks they would be a good judge from running against someone who they think is bad," [Davidson] said. "It could be perceived that it doesn't matter whether you are good or bad. Judges have little incentive other than pride to work hard once they get to the bench."
Again, Davidson seems to be acting under the delusive belief that his reelections were because he was a good judge. When Harris County's judges were chosen in the Republican primary, Judges had no incentive other than pride to work hard once they got to the bench. In fact, they had an incentive to do worse than work hard; to do the wrong thing: Republican bosses got caught putting pressure on appellate judges to change their ruling (in Lawrence v. Texas) on rehearing. It worked in that case—on rehearing the court upheld the statute (only to have the U.S. Supreme Court ultimately shoot it down); in how many other cases did the outcome depend on judges' desire to please the party kleptocracy?
For as long as I've been practicing law, it hasn't mattered whether judges were good or bad; they kept or lost their jobs regardless. If Davidson is to be believed, that "couldn't be perceived" before now by those on the bench. This would be credible only if you assumed that running for judge requires a certain amount of narcissism in the first place. It's not a fair assumption. For example, you'll never hear Judge Caprice Cosper whining about losing her bench to the Democratic tide in 2008 because she knew all along that her reelection hadn't been based on merit (which she had in spades). Anyone who thinks that Harris County chooses judges based on merit isn't fit to be a judge.
Nonpartisan election of judges will make it easier for the voters to get rid of good judges, it is true, but also of bad judges. I'm a believer in the power of truth and the ultimate triumph of content over marketing. If we can maintain a nonpartisan system, good judging will matter. The people of Texas want to elect their judges; let them. And let judges campaign on their records.
As much as I hate the idea of outcomes dependent on judges' desire to please the voters ("vote for me, my opponent once granted a motion to suppress"), it beats the hell out of what we used to have: outcomes dependent on judges' desire to please a party that selects for religious fundamentalism.
(See also That Sharolyn Wood is Such a Joker.)