'A Broken System': Texas's Former Chief Justice Condemns Judicial Elections

The Lone Star State insists that "the people" should determine who judges them. Here's why that idea fails miserably in practice.
Wallace B. Jefferson (Courtesy of Baylor University)

Wallace B. Jefferson, the newly retired Chief Justice of Texas's Supreme Court, is remarkable for many reasons. A Republican in the most Republican state in the Union, a black man in a state dominated by white conservatives, he has nonetheless been a dogged voice on behalf of Texas's poorest and least powerful litigants. He has also been a consistent critic of the dubious way in which Texas selects and retains its judges—through a series of judicial elections that are unabashedly partisan.

This month, Jefferson returned to private practice, leaving his post on the highest civil court in Texas nine years after he was appointed its chief by Governor Rick Perry. I recently interviewed him by telephone on a series of issues. First up was the notion of judicial elections. Here's a slightly edited version of our lengthy conversation (the first of a series I'll be posting here at The Atlantic over the next few weeks). Jefferson's remarks aren't just notable for their candor about the structural failure of the state's judicial campaigns. They also shed valuable insight into the motivations behind that failure -- and explain why things aren't likely to change anytime soon.

Cohen: Now that you are off the bench, what are you willing to say about the process of judicial campaigns in Texas?

Jefferson: I've been talking about this for a long time. And I am not the first one. Republican or Democrat Chief Justices for the last 30 or 40 years have been calling on the legislature to change the way judges come to the bench in Texas. It is a broken system. We shouldn't have partisan elections. I do not like the concept of a Republican or Democratic judge. I think fundraising undermines the confidence in a fair and impartial judicial system. So I would change it completely if I were king.

The sad reality, given the system that we have, is that if a judge wants to remain on the bench they have to find a way to reach the voters. And the only way to do that in Texas is in the media market. If you are running a statewide campaign, there are about 26 million people in Texas. You have Houston, Dallas, San Antonio, and Austin, and all are major media markets. Even to mail campaign literature, you've got to spend hundreds of thousands of dollars. So I don't  defend the system. I would want to change it.

But I think there are ways to run a campaign even with this unfortunate regime that we have that respects the role that judges must play as impartial arbiters. And so in my campaigns, I tried to treat it as a civics education. Most Texans don't understand that there are two high courts. There is a Supreme Court of Texas that hears civil cases only. And there is a Court of Criminal Appeals, the highest court for criminal matters. So I talk to them about the kinds of cases the court hears, how important they are to the lives of everyday citizens. I talk somewhat about my philosophy, how I approach cases. I talk about things like reforms that we've managed to achieve in Texas in civil and criminal administration of justice. That's how I campaign.

Cohen: How do lawmakers justify their reluctance to change the judicial selection system in Texas?

Jefferson. The general idea is that judges ought to be accountable. They'll say, "What if the judge is lazy or corrupt or doesn't have the intellect to do the job? Shouldn't the voters have an opportunity to take them out of office?" ... [But] the truth is that this notion of accountability doesn't work because the voters don't know the judges and they can't be expected to know the judges.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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