In Texas, we have regular, contested elections of our state judiciary. That means voters, not the judiciary or legislature, can elect good judges to the bench and vote the bad ones off. By voting, we can also exercise long-term control over judicial policy — the philosophy judges use to make decisions.
But judicial elections won’t work if the governor, who can fill unexpected vacancies, controls who sits on the bench. This is what happened recently, and voters should take back their power.
Last month, long-standing Republican Justice Bob Pemberton left the state’s Third Court of Appeals just three months before the end of his second six-year term. No reason was announced for his early departure.
He left, it seems, so that Republican Gov. Greg Abbott could appoint to Pemberton’s seat the very Republican candidate who is running for it — Michael Toth.
Republican Mike Toth, special counsel to Texas Attorney Ken Paxton, is running against Democratic Judge Gisela Triana, a 22-year veteran of the trial bench and a sitting district judge, after narrowly defeating his opponent in a primary runoff in May.
What was the purpose of this stunt, only three weeks before early voting?
Apparently, it was to give the Republican candidate, who has represented his office and has never served as a judge, a leg up. I have no criticism of Justice Toth. But the governor demeaned the bench by deciding to jump into the election at the eleventh hour. He should have stayed out of it or appointed a temporary justice, that wasn’t a candidate. The voters can decide without hints.
This is not the first time a governor has overreached. The many appointments of insider-friends by Govs. Abbott and Perry have politicized the bench.
We run the risk of over-populating the bench with judges who have neither practiced law, nor served as trial judges in the lower courts. Or if they practiced law at all — as opposed to just serving as advisory staff in the executive branch — have only represented the government — not private individuals or businesses under Texas civil or criminal law.
This is a problem for constitutional rights. The constitution protects citizens fromthe over-reaches of government and the judiciary, which adjudicates constitutional rights, from that of the executive branch, which executes the law. It’s called checks and balances.
If the judiciary is increasingly drawn only from the executive branch, that is, those whose only experience is representing the government’s side, or whose allegiance is directly tied to the governor or attorney general, it will have a very limited experience and view of the law. This is not to say that individual judges cannot adopt the necessary neutrality. Certainly many, if not most, judicial candidates decide to run after years representing state or private actors. But when judicial appointees are not held accountable to voters, the competence of the bench begins to drift.
To fight this, voters need to be diligent and vote. The best way to vote for judges is not by political party or campaign slogan. Check out their websites. They should be accounting for their time since law school and should have been practicing law or serving as a judge. Find out the date when they were licensed at www.texasbar.com under “Find a Lawyer.”
Political appointments, ultimately, are temporary, and voters will be able to take back their power this November.