Reconciling normative and empirical approaches to judicial selection reform: lessons from a bellwether state.

• Author: Cheek, Kyle
• Position: Texas - Issues Facing the Judiciary

Let me first thank the law school and the symposium organizers for the opportunity to participate in today's event. I would like to focus on two particular points. First is the Texas experience with judicial elections and the lessons that may be drawn from that experience. A strong case can be made that the increased politicization of judicial elections today has its genesis in Texas in the 1970s. And while Texas may correctly be characterized as the poster state for needing to reform judicial selection practices, other important lessons can be drawn from that case study. Second, I would like to speak to the role of the social sciences in the overall context of judicial reform efforts. Few, if any, truly believe that judicial selection practices could not benefit from some degree of reform, but to finally experience real and effective reform, efforts must be made across disciplines to not only propose feasible alternatives, but to better understand the political context of reform. To that end, I would like to draw on the Texas experience to emphasize the need to reconcile normative approaches and empirical contributions in the move toward effective reform.

I would like to first draw attention to a perhaps familiar passage from Tocqueville's Democracy in America:

By some [states'] constitutions the members of the [judiciary] are elected, and they are even subjected to frequent reelections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period, that the attack which is made upon the judicial power has affected the democratic republic itself. (1) I begin with Tocqueville's passage not to emphasize the fatalistic assumptions, or the indeterminacy of their predicted occurrence. Rather, I draw on this familiar passage to emphasize the tacit hypothesis that the judicial function is inherently apolitical (or, in perhaps more familiar terms, countermajoritarian). This assumption, that the judiciary should operate aside from the vagaries of the overtly political process, underlies the traditional view that the judicial function runs best when its independence is promoted-independence from inter- and intra-branch politics, as well as the rough and tumble campaign politics of elected office. This view often resolves itself to the position that the popular election of judges works against the fundamental norm of independence (2) and that, instead, appointive modes of judicial selection best promote that judicial ideal.

Consider now, from Philip Dubois, a divergent view of the judicial function:

Whether engaged in the resolution of constitutional, statutory, or common law cases, judges are required to make choices in their determination of the relevant facts.... These choices are pregnant with underlying questions of equity, justice, and public policy which are inevitably influenced by the judge's personal attitudes and values. (3) And separately:

Since no persuasive argument can be advanced for indirect accountability of judicial policymakers, direct accountability through elections is a preferable means for giving the public control over the third branch of government. And partisan elections seem preferable to nonpartisan ballots. At the simplest level, partisan elections are much more likely to assure the existence of opposition, vigorous criticism of those in power, and effective presentation of alternative policies. Political party leaders feel an obligation to recruit qualified candidates for each partisan office contested in an election, if for no other reason than to fill out and balance the party ticket. (4) Note especially Dubois' presumption that judicial office is inherently political in its nature--judges function as decision-makers with authority to influence the allocation of political and economic resources, and those decisions are invariably subject to some influence by the personal attitudes and preferences of the office-holder. The corollary assumption then is that judicial office-holders should be subject to an accountability-enforcing mechanism as a check on the discretionary aspect of the judicial role. This view assumes, as did Tocqueville, that elections dilute independence, but differs in that it finds this...