Sunday, May 17, 1998

Achieving justice on the bench in top Texas courts

By John Hill

There is a good news-bad news story on the Texas judicial reform front.

The good news is that several organized groups have now joined the chorus for a judicial election merit plan that removes big campaign contributions from judicial races.

The bad news is that some of these advocates are injecting a political agenda into the issue by attacking incumbent judges, and that could impede the progress we have made over the past decade.

When I resigned as chief justice of the Texas Supreme Court, I helped organize Texans for Judicial Election Reform as a bipartisan advocate of merit selection of our judges. Our goal is to remove the judiciary from partisan elections and diminish the big-dollar mentality that permeates these campaigns. If an incumbent judge is to be removed, let it be by the Judicial Conduct Commission or by the vote of the people based solely on that judge's record but not based on who can raise the most money or wage the most negative, partisan campaign

The nonpartisan effort attracted Republicans such as former Gov. Bill Clements and Democrats such as the late Congresswoman Barbara Jordan. Our legislative leaders have included outstanding members from both sides of the aisle. Numerous judges, prominent lawyers from both sides of the bar and business people have also lent their support.

These Texans agree that judicial races should not be a contest between special interests. Removing blatant politics from the judiciary is the best way to guarantee an independent judiciary and eliminate the perception that campaign money gains undue influence.

After careful study of other systems around the country, we have urged the Legislature to submit a constitutional amendment to the voters that would convert the judicial election system to a merit plan.

Under the plan, a judicial vacancy would be filled by the governor and confirmed by the Senate, just as current law requires. Thereafter, the judge would face periodic nonpartisan retention elections -- running against his or her own record, so to speak -- rather than contested partisan elections requiring massive fund-raising. I would prefer that a broad-based screening commission, appointed by the governor, lieutenant governor, speaker of the House and possibly others, review the qualifications of judicial candidates and submit recommendations to the governor.

Virtually every Texas newspaper has endorsed merit election, and public opinion surveys reflect strong approval once the plan is clearly explained.

While I would like to see the merit plan in place for all appellate and district courts, a new selection system for the Supreme Court, Court of Criminal Appeals and the intermediate courts of appeal appears more likely to pass the Legislature.

It would be unfortunate if this badly needed improvement in the election process is derailed by partisan haggling.

That's why I object to a newly organized media campaign that criticizes members of the Texas Supreme Court. Justices running for re-election are faulted for taking campaign money from lawyers with cases pending in their courtrooms. Others are attacked for raising campaign funds in past elections, while the fact that each had well-financed opposition is not mentioned.

This media campaign also ignores that members of the Supreme Court who have been most ardent advocates of judicial reform are the same justices who are targeted. These justices have been particularly harsh critics of the current system, which requires them to amass campaign war chests to run partisan political election campaigns. Most members of the Supreme Court know the current system is deeply flawed and are doing everything they can to urge the Legislature to take action.

Finally, these individual justices are criticized for doing what virtually every sitting judge must do in order to run an election -- raise campaign contributions from lawyers, law firms and other groups with a vital interest in the legal system. The problem is partisan judicial elections, not the individual judges who must operate according to the dictates of that structure.

Our goal should be to establish a better system that eliminates these expensive judicial campaigns, just as most other states have done. Let's address judicial election reform in a responsible and dispassionate way, without hot rhetoric, transparent partisanship and personal attacks on our judges.

Houston attorney John L. Hill is former Texas attorney general and former chief justice of the Texas Supreme Court.