The Selection of State Judges
By Senator Craig Estes
Currently winding its way through the legislative labyrinth is a judicial selection plan designed to amend our current state judicial selection process. Under current law, our state judges from the local district courts to the Texas Supreme Court are elected by popular vote. Under the Judicial Selection Plan, officially known as Senate Joint Resolution 33 and Senate Bill 794, the governor would appoint these judges with the advice and consent of the State Senate. The people, who now elect and re-elect their judges, would still maintain voting authority through retention elections. Judges, appointed by the governor and confirmed by the Senate, would serve judicial terms of four to six years. At the end of each term, each judge would be subject to a retention election in which the people would decide to keep the judge or remove the judge from office.
Like most issues there are two sides. Proponents are passionate in their belief that an appointed judiciary would be independent and absent the appearances of impropriety inherent in a system in which judges must raise money from attorneys practicing before their courts. Opponents are concerned that this independent judiciary would ignore the will of the people and disregard the Legislature's public policy intent on matters brought before the court. Those favoring an appointed judiciary believe that the quality of judges will improve. Those favoring an elected judiciary believe this is an insult to the voters who select these judges.
Both sides bring compelling arguments to the table. However, for too long this debate has raged at political party conventions or editorial board meetings, and the people have yet to have their say on this issue. Various polls may suggest which way the wind is blowing, but very few candidates have run on the platform of an elected or appointed judiciary. Thus, no mandate or will of the people is derived when looking at election night results. All that remains are political pundits interpreting and spinning what they believe the people feel and want.
The debate that surrounds this issue today is not dissimilar to the debate that raged between the Federalists and Anti-Federalists at the forming of our nation's Republic. Federalist leaders John Adams, James Madison and Alexander Hamilton firmly believed in an appointed judiciary while Anti-Federalist leaders George Mason, Eldridge Gerry and Patrick Henry favored an elected judiciary. The Federalists believed that an appointed, independent judiciary would provide the key check and balance on the other two branches of government, and help balance the competing interests of the people. The Anti-Federalists feared that an independent judiciary would devolve into a new monarchy and would lead the new Republic to tyranny. Eventually, the Federalists won the debate, so the Constitution of the United States provides a strong Chief Executive, a proportionally representative Legislature, and an appointed Judiciary.
In my opinion, creating an appointed judiciary or maintaining our elected judiciary is not about trusting the people to make the right choices. As an elected official, I trust fully the ability of the people to select their governor, legislators and judges. No, this is not a question of the people's competence to make the right decisions. Of that, I have no doubt. This is a question of whether the people should have direct control over all three branches of state government. And this is a question that only the people should decide.
The time has come to allow the people of Texas to decide if they wish to retain their direct election authority or to allow the governor to appoint their judges with Senate approval. I trust fully the people's ability to make the decision that is in the best interest of Texas, and that is why I supported Senate Joint Resolution 33, which will place this constitutional amendment before the people of Texas on November's ballot. At the same time, I voted against the enabling legislation (Senate Bill 794) because I want the people of Texas to voice their opinion on this issue absent any influence by the Legislature. If the people of Texas decide that our judges should be appointed, then the Legislature can return next session and enact the legislation.
A question of this magnitude and importance should not be made hastily, but with slow, thoughtful deliberation and with the input of the voters. Doing such, I am confident we will make the best decision for Texas.
# # #