By Justice Julie Countiss, First Court of Appeals
Right now, the Texas Commission on Judicial Selection (TCJS) is considering the state’s current system of electing judges for statewide offices, and the deadline to submit findings is just around the corner. The TCJS was created in 2019 by the 86th Texas Legislature to study and review the method by which statutory county court judges, including probate court judges; district judges; and appellate justices and judges are selected for office in Texas. The study must consider the fairness, effectiveness, and desirability of selecting a judicial officer through partisan elections; the fairness, effectiveness, and desirability of judicial selection methods proposed or adopted by other states; the relative merits of alternative methods for selecting a judicial officer. The TCJS is required to submit a report on its findings and recommendations to the governor and the legislature no later than December 31, 2020.
My name is Justice Countiss, and I am a current judge on the Court of Appeals. I ran for a seat on the Harris County Civil District Court in 2016 and lost in the Democratic Primary by only a few hundred votes in a runoff election. In 2018, I ran unopposed in the Democratic Primary for a seat on the Court of Appeals and won the general election against my Republican opponent. With my almost two years of experience as a judicial candidate in partisan elections, I jumped at the chance to give my input on the following questions at the request of a TCJS member., To be clear, the below responses are mine alone; I do not speak for my colleagues. The answers below have been edited both by myself and editors from the Appellate Lawyer staff for purposes of facilitating this column and are similar, but not an exact representation, of what I submitted to the TCJS.
- How and where does the current method of judicial selection in Texas work, if at all?
The current method of judicial selection in Texas seems to be the only way to achieve any sort of diversity in our state courts. Allowing voters to elect judges has led to much-needed diversity on the bench, particularly in urban areas. Conversely, gubernatorial appointments to the bench over the last 19 years have been majority white and male. And it appears that the governor withdrew his nomination of two people serving on the judicial conduct commission because he disagreed with their position on a case involving a judge who refused to perform same-sex marriages. In response, the governor’s spokesperson stated, “when we appoint people, we appreciate so much that people are willing to serve and hope that people understand that they’re serving the governor, not themselves.”
- How and where does the current method of judicial selection in Texas NOT work, if at all?
I think it can be difficult to recruit candidates, particularly for the appellate courts, who are willing to run in partisan elections. The stress of raising money and attempting to campaign in multiple counties or statewide is not attractive to most qualified lawyers. Also, it’s just not possible for an appellate court candidate to reach a majority of their voters in a meaningful way. As a result, state appellate court judges are elected and reelected based almost solely on who is running at the top of the ticket.
- What general sources of information are Texas voters using to weigh the qualifications of judges?
I’m only familiar with sources of information in the Houston area, which include, for example: the Houston Chronicle endorsements, League of Women Voters, Off the Kuff, local political party literature, information shared by candidates at the local Democratic Party club meetings, candidate websites, social media, word of mouth from other attorneys and similar sources of information are available. In contested primary elections, voters also receive mail from candidates and interest groups. Some of the more competitive endorsements for Democratic candidates running in contested primaries are the Houston GLBT Political Caucus, Harris County Tejano Democrats, Houston Black American Democrats, AFL-CIO, Stonewall Democrats, and Mexican American Bar Association. Additionally, there are many other influential clubs and bar associations working to get out the vote within their memberships.
- What impact, if any, do judicial campaign contributions have on the appearance of impropriety of the Texas judicial system?
I can understand the reasons that judicial campaign contributions might affect the appearance of propriety in the Texas judicial system. That being said, I don’t feel like anything is expected of me from my supporters and contributors other than to work hard and follow the law. It’s also worth considering that a large amount of the money raised by judicial candidates goes to support Get Out The Vote efforts of their political party. In counties like Harris County, with dozens of judicial candidates on the ballot, the local Democratic and Republican parties benefit from hundreds of thousands of dollars raised by these candidates. This stands out as something that bothers people who think our judges should not run in partisan elections.