January 28, 2015
By Rudy S. Apodaca – Special to the American-Statesman

Texas’ judicial system is broken. Is the way we select judges the best we can do?

A myth exists in the public’s eye. It is this: Our judges are chosen from the most qualified members of the bar. That simply isn’t true. The fact is that this state’s selection system is flawed because, by its political nature, it doesn’t allow us to pick the best and the brightest in the legal profession.

Texas is blessed with some highly capable jurists; they’re good at what they do. But they are there despite our current process, not because of it. We’re lucky to have them, but the truth is that no jurisdiction in this country has a process in place to assure that the most qualified become judges.

There are many competent attorneys, some of them brilliant. Yet, most of them don’t have a burning desire to become judges. Many of them enjoy their work and, feeling already challenged, aren’t looking for change. They enjoy their relatively high incomes and aren’t willing to give up that security.

By comparison, many judicial positions don’t generate the salaries prospective candidates earn. Quite often the ones motivated to seek judgeships aren’t doing as well monetarily and want higher pay, as well as prestige. And if they belong to the “right” political party, a few might get into office, even though lacking essential qualities.

For these reasons, we shouldn’t select our judges by the same method in place for other offices — primary and general elections.

Because judicial races don’t get high exposure, the qualifications of our judicial candidates are most likely unknown. The majorities of votes for them often don’t go to the best qualified but to those with the most money for expenses or who belong to the political party in power.

Ever since Texas went red in the ’80s, is it any wonder that all of the justices on the two highest civil and criminal courts in the state are Republicans? If our existing selection system really worked, based on these statistics, one might conclude that Republicans are the only qualified candidates running. Democrats needn’t apply.

Is it surprising to anyone that all judicial offices in Travis County, a predominately Democratic county, are filled by Democrats? What of Williamson County, a county where all its judges are Republicans? What does party affiliation have to do with a prospect’s qualifications?

The elective process that’s been universally accepted in this country for all non-judicial offices just doesn’t work well. The system encumbers us rather than helps us. First, it makes it difficult for excellent lawyers to run. Second, it prevents us from having a choice to vote for the best candidates our legal profession has to offer.

To my knowledge, although some legislators in the past have explored options, reform hasn’t gained enough support for the changes required. Other states have succeeded in improving their judicial selections. They include our neighboring state, New Mexico. That state’s process lessens the role of politics.

If Texas were to make a similar change, our selections might be based on contenders’ qualifications, rather than on how much money they’ve spent or who their cronies are.

Although no selection process is free from politics, we have choices. Doesn’t it make sense to change things? Ask yourselves, what are you getting for your taxes and votes? For years, our antiquated system has failed to deliver what we’re entitled to — the best. We shouldn’t accept any less. Let us open our eyes and take a hard look at what it would take to turn things around. During the current legislative session, we can demand legislative action initiating a study of this issue.

It’s a given that any move for reform will meet resistance from political parties and special interest groups. They’d cry out that it would disenfranchise voters, who supposedly take an active role by pulling a lever or pushing a button on election day.

Don’t let that wolf cry fool you — it’s meritless. What we now have isn’t an active process. We stand by, allowing external, opaque politics to play a major role in continuing our sad state.

So rise up, my fellow Texans. Or not. The choice is yours.

Apodaca, author of the novel “A Rare Thing,” is a former chief judge of the New Mexico Court of Appeals and retired in the Austin area over 10 years ago.

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