The cycle of judicial elections: Texas as a case study.

• Author: Champagne, Anthony

1. INTRODUCTION

   1. Background on Judicial Elections

      Unlike the federal model of judicial selection, the model for the selection of state judges has undergone significant change throughout American history. (1) Until the mid-1800s, state judicial selection generally adhered to the federal model, emphasizing the appointment of judges. Typically, judges were selected by gubernatorial appointment coupled with confirmation by a special commission or the legislature; in some cases, judges were appointed directly by the state legislature. (2) The emergence of Jacksonian egalitarian democratic ideals in the nineteenth century brought about a growing belief that judges, like other public officials, should be accountable to the voting public. (3) As that ideal gained acceptance among reformers, states began moving away from legislative and gubernatorial appointment and toward the selection of judges by popular election. In 1832, Mississippi became the first state to provide for the selection of its judges by popular election. New York followed in 1846. For the next sixty-five years, every new state to enter the Union provided for some or all of its judges to be chosen by popular Election. (4)

      When popular judicial election began in Mississippi and New York, judges typically ran on partisan ballots, campaigning alongside their fellow party candidates. In the latter part of the nineteenth century, however, Progressive reformers grew increasingly concerned with the influence of party bosses, who often gave judicial nominations to the party faithful, instead of the most qualified candidates. (5) To quell judicial selection by party leaders, reformers pressed for nonpartisan judicial elections. (6) In the closing decades of the 1800s, the legal profession also responded to the extraordinary influence of parties over judicial selection. Lawyers began organizing bar associations largely to promote judicial selection based on qualifications rather than party patronage. (7)

      In the mid-twentieth century, reformers began advocating the "Missouri Plan," which removed the initial selection of judges from popular control but retained the Jacksonian ideal of electoral accountability. (8) Under this plan, judges are appointed by a governor from a list prepared by a judicial nominating committee. The judges appointed under this plan then run in periodic, uncontested "retention" elections where voters are allowed to determine whether the judge remains in office. (9)

      Contested elections, however, have not been eliminated. Thirty-nine states still select some judges through popular election, and eleven states select their supreme court justices in partisan elections. (10) In spite of the Missouri Plan's initial popularity, the wave of reform that accompanied its early years has waned. Judicial elections are now the norm and their weaknesses require wholesale reform. A clear understanding of judicial elections will shed light on how to improve the process of selecting judges. This Article focuses on Texas, whose history often foreshadows the experience of other states.

   2. The Case of Texas

      In its first five years of statehood, Texas was a microcosm of the early national experience with state judicial selection. Initially, judges were appointed by the governor and approved by the Texas senate. (11) Then, in 1850, the influence of Jacksonian Democracy led to the adoption of judicial selection by popular election. (12) Under Reconstruction, Texas returned to the gubernatorial appointment of judges. (13) However, largely in response to abuses of the gubernatorial appointment power during Reconstruction, Texas included a provision in its current constitution, adopted in 1876, for the selection of judges by popular election. (14) While the Texas constitution does not require that judicial candidates run on partisan ballots, Texas election law encourages judicial candidates to run as party Nominees. (15)

      Although Texan judicial elections are conducted by partisan ballot, the first 100 years of judicial elections reflected the dominance of one party in Texas. Judicial races were seldom contested, and when a contested race was run, incumbent judges were typically secure. (16) One study of judicial selection in Texas found that from 1952 through 1962, death, resignation, or retirement was more likely to end judicial tenure than electoral defeat. (17) During the era of one-party politics, contested elections seldom occurred in the general election. Instead, challengers were more likely to appear in the Democratic primary. Texas' provision for gubernatorial appointments to fill mid-term vacancies also became an important means of ascending the bench. Mid-term resignation was common among judges, allowing the governor to name a replacement. (18) Judges initially appointed by the governor then enjoyed the benefit of incumbency when facing election for the first time. This arrangement was so common in the first 100 years of the 1876 constitution that one study concluded that the Texas judicial selection system was primarily appointive. (19)

      Only in the 1970s, with a newly emerged two-party political landscape, did meaningful contests for judicial election begin to occur. Starting with district court races in urban areas, Republican candidates began breaking the century-long Democratic stranglehold. (20) As competitive partisan contests became more common, campaigns standardized, with perhaps the most important developments being the new role of parties and the escalating cost of judicial races.

2. CHANGE FROM OLD JUDICIAL POLITICS TO THE NEW PLAINTIFF-DEFENSE WARS

   As in other states that elect judges, (21) judicial elections in Texas were not always contested. (22) Traditionally, Texas justices, like most elected officials in the state, were conservative Democrats. One journalist aptly described the pre-1978 supreme court as follows:

   [J]ustices' names seldom appeared in the press and were known only to the legal community. Most justices had been judges in the lower courts; a few had served in the Legislature. At election time, sitting justices almost never drew opposition. Some justices resigned before the end of their terms, enabling their replacements to be named by the governor and to run as incumbents. In the event that an open seat was actually contested, the decisive factor in the race was the State Bar poll, which was the key to newspaper endorsements and the support of courthouse politicians. In effect, the legal and political establishment begat generations of justices who reflected the assumption of their progenitors that preservation of a "good bidness climate" is the highest aim of government. Part of that climate was a legal system in which oil companies, hospitals, insurers, and other enterprises didn't have to live in constant fear of lawsuits. (23)

   Judicial elections were sleepy, low-key affairs that resulted in the election of pro-civil defense Democratic judges. This did not change until the late 1970s. At that time, a remarkable event in the history of the Texas judiciary occurred: an unknown lawyer named Don Yarbrough ran for the Texas Supreme Court and won. Not only was Yarbrough an unknown, but numerous ethical complaints had been filed against him, and he ran against a highly respected incumbent who had won the state bar poll by a 90% margin. Yarbrough served only a few months before criminal charges and the threat of legislative removal led to his resignation.

   How did he win the election? Yarbrough was a well-known political name in Texas, and voters probably confused him with either the long-time U.S. senator, Ralph Yarborough, or with another Don Yarbrough, who had twice run for governor. (24) Regardless, this episode proved that literally anyone could be elected to the Texas Supreme Court, if they had a popular name. (25)

   Name identification might occur naturally, as with Yarbrough, but it can also be bought. Around the same time Yarbrough lucked into his judgeship, plaintiffs' lawyers began pouring significant amounts of money into Texas Supreme Court campaigns in an attempt to elect justices with pro-plaintiff philosophies. For example, in 1982, a good election year for Democrats because popular Democratic Senator Lloyd Bentsen headed the ticket, a highly successful San Antonio plaintiffs' lawyer and one of his wealthiest and most litigious clients, Clinton Manges, poured $350,000 into three supreme court races; two of their candidates were elected. (26)

   By 1983, justices with significant backing from the plaintiffs' bar gained a majority on the Texas Supreme Court. (27) With the election of a pro-plaintiffs' court, Texas tort law began moving in the plaintiffs' direction--a move that would damage the court's reputation. In Manges v. Guerra, for example, a jury found that Clinton Manges, acting as the manager of mineral leases on 70,000 acres of the Guerra family's land, had violated his obligations to the Guerras. The jury relieved Manges of his manager position and awarded the Guerras $382,000 in actual damages and $500,000 in exemplary damages. (28) The intermediate appellate court upheld the verdict, and appeal was taken to the Texas Supreme Court. (29) Manges hired Pat Maloney, Sr. to represent him before the supreme court.

   The case was assigned to Justice C.L. Ray, who had received substantial campaign contributions from Manges and Maloney. Ray initially proposed an opinion supporting Manges. When the court rejected that opinion, Ray tried again. Two justices eventually recused themselves, one having been sued by Manges over a campaign statement he had made, and the other having received $100,000 in campaign money from Manges and Maloney. With those recusals, the vote was 4-3 for Manges and for reversal of the lower court. Then, the chief justice ruled that five votes were required for reversal. Justice Robertson, one of the justices who had recused himself, immediately changed his recusal to a vote in...