Another chance at judicial reform
By: Bruce Davidson
5.28.2006
San Antonio Express News, May 28, 2006
The long-stalled effort to reform Texas' system of selecting judges may gain new momentum before the start of the next legislative session. Efforts to change the system have been mounted in numerous legislative sessions only to die a quiet death. The subject was barely mentioned in the 2005 session as lawmakers were swamped by the school finance crisis. And Tom Phillips, the former Texas Supreme Court chief justice who energetically championed judicial reform, has moved on to private practice. But Texans for Lawsuit Reform is poised to breathe new life into the issue. Earlier this month, TLR President Dick Trabulsi said the organization's leaders believe partisan judicial elections "need a fresh hard look as to whether that is the best way to choose judges." While TLR has not crafted its 2007 legislative agenda, the group has a judicial selection study under way that likely will be released in September. Considering the tort reformers' record of success in pushing legislation over the past decade, a TLR effort to revamp the judicial selection system could provide considerable muscle. The last time lawmakers seriously pushed for merit selection with retention elections, then-Texas Republican Party Chairwoman Susan Weddington led the opposition despite support from other GOP leaders. The issue isn't partisan. But the party that enjoys majority strength at any given time doesn't like to surrender any electoral advantage. "Judges help get out the vote," noted Trabulsi, adding that campaign advisers and consultants in both parties like the elections because they provide work. Lawrence J. McQuillan of the California-based Pacific Research Institute, who recently completed a study on the economic benefits of tort reform, said, "When judges are elected, they tend to act like politicians in robes." McQuillan said elected jurists often favor in-state plaintiffs over out-of-state defendants. Economists favor independent judges who have been appointed over elected ones, McQuillan added. Under Texas' system of partisan elections, judges are forced to hustle contributions to stay on the bench, particularly in statewide races. It's difficult to believe that a judge can disregard contributions from lawyers and litigants appearing in his court. While no system is perfect or completely free of politics, merit selection with retention elections is the reform that makes the most sense. Under that system, the governor would appoint judges, who ideally would be screened by a nonpartisan legal panel. Senate confirmation would be required. After serving a term, a judge would be required to face voters in an up-or-down vote. If the judge were ousted, another would be appointed. A reasonable term limit could be applied. TLR hasn't settled on a specific approach to reform, but Trabulsi said, "Almost certainly, any proposal that we would make has to include retention elections." Retention elections are a way of persuading the people of Texas that the state is not going to have an appointed-for-life system, he added. TLR is likely to suggest other systemic reforms as well. A constitutional amendment would be required to enact judicial selection changes, which means voters will have their say if lawmakers are willing to pursue the issue. The possibility of tort reform leaders getting on board is the best news in years for judicial reform. If TLR throws its weight behind the effort, a judicial system free of the taint of partisanship and excessive campaign contributions finally could be within the state's grasp.
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