Thoughts on judicial elections from a retired Texas trial court judge, who still hears cases when assigned, but gets few assignments because he was elected as a Democrat and the state has gone Republican.
I very publicly split from the Democratic Party over what I see as the excessive influence of the Blue Dogs. I was disgusted when President Obama was not allowed to enact the program he ran on, but still got criticized as if he had.
I quit financially supporting the party and starting picking my candidates one at a time. I consider myself a left independent, if it matters in evaluating the remarks below the fleur-de-kos.
Silly season will soon be upon us, and I am moved to some remarks on picking judges. In Texas, we do this by partisan election.
I understand the elections. They provide a mechanism for, as the late, great Warren Burnett put it, “bringing down a judicial tyrant short of his biological end.”
I do not understand the partisan part. It leads to the most common reason for the ousting of incumbent judges. Not tyrannical behavior, but being on the wrong side of a partisan sweep.
A state judge friend of mine in another state had a political near death experience for the sin of sharing a surname with a federal judge who had signed a very unpopular desegregation order. Which also makes the point nicely that judges ought not to decide all lawsuits with a wet finger in the air for which way the political winds will blow.
I once entered a summary judgment in favor of a public employees union that, because of procedural quirks, involved millions of dollars in my limited jurisdiction court. This made my base very happy, but I was publicly eviscerated by my enemies for playing politics, and I expect nobody remembered that attack when the Supreme Court affirmed me.
Fewer people know that later, when I acquired the authority to sit in a District Court case, I also entered a multi-million dollar summary judgment for Exxon, against a very sympathetic little guy. I yield to nobody in my distaste for Exxon as a corporate person and I had personally cut up my Exxon card and sent it back to the corporation some years earlier over a particular depredation, but there’s no way that information would get to Exxon’s lawyers in time to recuse me. My judgment, which was affirmed, is some proof there was no reason to recuse me.
Still, you can make a rough argument for the relevance of political orientation. Let’s say a statute is being challenged on constitutional grounds and there is no white horse case that dictates the result. Broadly speaking,
A Republican judge would tend to strike down regulations of corporate conduct and uphold regulations of personal conduct while a Democratic judge would tend to strike down regulations of personal conduct and uphold regulations of corporate conduct. As the Republican SCOTUS makes corporate citizens more and more like human citizens, this may at some point become a distinction without a difference.
A Libertarian judge would tend to strike down both and a Socialist judge would tend to uphold both.
In the real world, lawyers who aspire to be judges fly the flag of the dominant political party in their jurisdiction, even if it’s a false flag. There is one on the ballot right now in my county and I intend to vote for him. He didn’t make the system that forces him to play Republican.
The three faults I’ve ever found in sitting judges in a lifetime at the Bar—leaving aside dishonesty, which goes without saying---are, in order of appearance, laziness, political cowardice, and stupidity. These are all pretty hard for the most diligent voter to dope out in advance.
If you don’t know the candidates, you are stuck with looking at their experience.
I’ll talk about criminal courts, because that’s what engages most folks, but much of what I say translates to civil courts, where one segment of the Bar normally represents insurance companies and other corporate interests and another represents interests of individual humans.
I personally prefer the British system, divided into office lawyers (solicitors) and trial lawyers (barristers) and a barrister may not “refuse a brief” (a case prepared for trial by a solicitor) without raising ethical eyebrows. If you have time and they have a fee, you argue the case without regard to which side you are asked to argue. This is how we are trained in law school, to argue the side we are assigned. That quickly goes away in the hurly-burly of law practice and we become professionally identified with the government or with the citizen accused, with the plaintiff or with the insurance company.
Since I filed to run for judicial office before I passed the Bar Exam, I knew I wanted to be a judge and I preferred criminal work. It was my intent to get experience on both sides of criminal cases before running again. I came from a very aggressive criminal defense firm.
Unfortunately, the way to the District Attorney’s office was though the County Attorney’s office, and the County Attorney at that time allowed any prosecutor to blackball a potential hire. I was blackballed for my actions in a particular case.
I was attempting to get a criminal charge dismissed by mounting a constitutional challenge to a policy and practice of the County Attorney’s office at a pretrial hearing. Out of the chute, I stood up and asked my opponent to stipulate that the policy I wished to challenge was in fact the policy. He knew, I knew, and the judge knew the stipulation I requested was true, but he refused to stipulate. So I called him to the witness stand.
That elicited the stipulation and I won the case, but when I applied for employment as a prosecutor, he took the position that I had been showboating and he cast the blackball.
I eventually made it to the Bench as a known defense lawyer, but not for lack of trying to gain experience on both sides.
So take my bias into account when I say that I would rather vote a defense lawyer to the Bench than a prosecutor. Here in Williamson County, Texas, a man just went from the Bench to jail and lost his law license for failure to produce exculpatory evidence as a prosecutor, leading to an innocent man spending almost 25 years in prison. Still, the way to the Bench in this county remains though the prosecutor’s office.
In constitutional issues, you get in the habit as a defense lawyer of looking for ways to keep evidence out. As a prosecutor, your task is to get evidence in. Since the Bill of Rights and the Exclusionary Rule in criminal cases are not politically popular, it seems to me you are more likely to find the golden mean if you start out with both feet planted on the Bill of Rights.
More important, my five years as a police magistrate taught me how cases look before they are manicured for the courtroom. Most cases brought to me for probable cause determinations were slam-dunk guilty, and I often got my nose rubbed in the perspective of victims of crime.
I also saw the abuse police officers take in their daily work, and if you don’t come out of that with some sympathy for the police, you are a rock.
Defense work lends some balance to the natural sympathy for police and the fact that most people in the system are guilty of something, although more often that we might wish not guilty of the immediate charge.
My scariest times as a defense lawyer, leaving aside one capital case, were cases when I represented factually innocent clients…understanding in my gut that I was the only actor in the system who believed they were fully, completely innocent. That feeling is something valuable to take to the Bench.
These are my thoughts on picking judges, and I understand that putting them into practice is a bit of a challenge. I would add that if you know nothing, you ought not vote. My name, “Steve Russell,” was good for 15 points among people who did not know me. Good Texan name. My Cherokee birth name would probably have not only lost me that 15 points, but dug me a hole. I’m the same guy. I’m lucky that I changed my name way back before I ever set foot in college, so nobody could accuse me of having a political motive.
Take those judicial races on the ballot seriously. They matter to the public interest, and if you ever have to come to court, they will matter to you personally.