Author’s note: As a Republican judge having presided in a Harris County misdemeanor criminal court for the last fifteen years I’ve given much thought to our current judicial selection process. I wrote this essay long before my defeat in the March 6, 2018 Republican primary, and I’ve revised it to reflect what I’ve learned from that election. JK
Supreme Court Associate Justice Neal Gorsuch stood for judicial independence during his confirmation hearing, and while there he wisely resisted attempts to commit him to specific beliefs and practices. As a nation of laws we should laud and stand with him. Justice requires such independent judges to strictly follow the law, and to be wisely selected before they serve. Abraham Lincoln, Father of the Republican Party, stood for those values.
The Founders considered those values when they designed a judicial system separate from the executive and legislative branches, and insulated from private, partisan and political influences. Texas can wisely elect such an independent judiciary only if voters are well-informed about qualified judicial candidates.
Unfortunately, certain special interest groups in Harris County have long manipulated this information process by influencing judicial elections according to their narrow interests. They pursue political consequences for Republican judges who follow laws with which they disagree, and for those whose decisions displease them. They hand-pick judicial candidates while soliciting advertising funds from them. All of this results in a diminished judicial selection process and diminished judicial independence.
Each campaign season these special interests become so-called “pay-to-play,” mostly-for-profit “slates” that send ballot recommendations to many thousands of voters. Slate publications are better funded than most judicial campaign budgets with many thousands of dollars contributed by candidates seeking valuable endorsements and generous campaign assistance. Slate mailers are cleverly designed with the right colors and logos to mimic official ballots and Republican publications. Mail-in ballots, attached by perforation to the slates’ endorsements, are sent to shut-ins, the elderly and those unable to vote at the polls. These publications often contain fake news: misleading information, exaggerations, and half-truths. For these reasons the Harris County Republican Party’s Executive Committee condemned them, yet it is unable stop them.
The Texas Conservative Review is published by an attorney and former Harris County Republican Party chair who has been widely-reported to receive lucrative court appointments from judges he supports. The Link Letter is published by a non-attorney AM radio commentator. Conservative Republicans of Texas – Harris County is published by a doctor who runs a public policy political action committee. They have arrogantly anointed themselves “judge-makers.” They are Harris County’s de facto judicial overlords.
The slates target incumbent judges, hand-pick candidates to replace them, make deals with others, and discourage opposition. Behind closed doors they interview aspiring judicial candidates and seek assurances of ideology and preferred judicial practices in return for valuable political support. Many independent political consultants encourage their clients to engage with these slates.
Republican judicial candidates funding the slates receive endorsements while minimizing their overall campaign costs and efforts necessary to connect with voters throughout our large and populous county. In a sad irony, the incumbent judges supporting the slates effectively fund efforts to unseat their judicial colleagues whom the slates oppose.
The slates’ ideology-laden publications skirt judicial ethics rules by promoting public policies upon which judges and judicial candidates should not ethically comment. Public policy discussions are essential to robust legislative and executive debate, but are out of place in judicial selection. Judges have little or or no say in public policy because they are decision makers who must consult the law to inform their actions.
These various slate activities undermine judicial independence, poison judicial collegiality, and diminish the overall credibility of Republican judicial selection, which in turn can weaken the party in the November general election.
The slates go further and interfere with judicial actions. For example, after the Supreme Court extended marriage rights to same-sex couples in 2015 the slates threatened judges with primary election opposition should they officiate same-sex weddings, despite our Republican Harris County Clerk routinely issuing marriage licenses to gay couples since the law changed.
These threats present ethical and moral dilemmas to judges who must either stop officiating weddings, or reject marriage-minded same-sex couples and then face Judicial Conduct Commission sanctions. In July 2015 Harris County Attorney Vince Ryan warned judges of those consequences, which include removal from office. Unsurprisingly, most Republican judges stopped officiating weddings, and the few who defied the slates became primary targets. I was one of them.
Why is this important? Because no one should fear that if minor judicial acts like officiating weddings are politically threatened, then more consequential judicial acts are next. Political threats for lawful judicial acts reduce judges to handmaidens and stable boys to special interests whose threats and choices thrust upon judges are contemptuous of the rule of law and judicial ethics.
The Founders’ vision of justice is indeed the rule of law served by a commitment to follow it – our Republic’s time-honored pointers on the judicial compass. Wise, independent judges set aside personal belief and ideology to follow the law. The slates scorn this vision while expecting something else from judges. The Republican electorate has tolerated this manipulation of judicial selection for far too long.
Each campaign season for over 20 years the slates imperil judicial independence and the credibility of Republican judicial selection. Sadly, it has happened again. In the recent March 6, 2018 Harris County Republican primary election 75 judicial races were on a nearly 20 page ballot. The slates correctly wagered that “ballot fatigue,” apathy and physical impediments would drive voters to uncritically follow their recommendations. After the votes were counted two longtime, highly rated judges (including me) were ousted, another highly-rated judge is facing a tough run-off election with a slate-endorsed candidate, and many other well-qualified candidates were bested by less-qualified, less-experienced slate-supported candidates.
Imagine voters stopping at polls on the way to work, on the way home, or during a precious lunch hour or coffee break only to encounter this massive primary ballot. As predicted by Mark Jones of The Baker Institute in his January 2017 published study of judicial selection in Texas, down-ballot races in this primary were under-voted (meaning down-ballot candidates received no votes) by up to 30 percent.
The slates successfully drove voters to most of their endorsed candidates in those down-ballot races with mail-in ballots and the slates’ so-called “Official Ballot Guide” seen by poll workers being carried en masse into the polls. Judicial independence and the credibility of Republican judicial selection have once again been greatly diminished.
The slates’ influence will end only when more voters take the time to critically evaluate slate endorsements and then cast an informed vote in down-ballot races. The slates will then wither and die as more judicial candidates find the heart to stand up and refuse to honor and pay them. Only then will the slates’ cynical game of benches come to a richly-deserved conclusion.
Your contest is not the only one where judicial independence was challenged by the slates and other disgruntled litigants. Judge Theresa Chang was the target of unfair and false publicity, likely funded by a couple of lawyers who lost cases in her court. Former Judge Erin Lunceford’s defeat was rumored to be linked to a ruling against one of the slate kingmakers in a legal case. Judge Sylvia Matthews at first drew an opponent, thought to be recruited in response to a ruling which upset one of the slates principals. And even judges who did not get opponents have been subject to pressure. Greg Enos in his Mongoose publication has detailed how Dr. Hotze showed up at a hearing in Judge Alicia Franklin York’s court in a transparent effort to influence a judicial decision. And none of this is new behavior. Gary Polland coordinated campaigns 20 years ago to censure Republican appellate judges, including Judge Murphy who just died in the past week, who ruled that the Constitution required marriage equality. If the Republican Party does not get its own house in order, we may pay the price at the polls, just as Democrats did after the 60 Minutes investigation of the Texas Supreme Court many years ago.
If you want judicial independence, then why do we have Republican and Democratic candidates? There are certain positions that should be non-partisan. Heading the list are our judges. Also on the list are District Attorneys and Sheriffs.
I usually refer to California as Kookfornia, but in this case they’ve got it right. There are no partisan elections for the judiciary and law enforcement positions. Candidates are free to disclose their party affiliation, but there are no Republican or Democratic primary races for those positions and on the general election ballot, their party affiliation is not listed.
There is also the argument that judges should not be elected in the first place, but that is a different matter.
Judge Karahan, I am sorry you fell victim to a bunch of narrow-minded bigots. I am personally opposed to same-sex marriages, but since they are now the law of the land, so be it.
Completely agree with Howie on this one.
By the very nature of the job, judges are going to piss off half of the people in their courts. It’s a someone wins and someone loses. The thing is that judges are supposed to follow the law.
A few years ago, a conservative, prosecution oriented Republican judge granted a motion to suppress the arrest, field sobriety tests and breath test results in one of my DWI cases. I am sure she hated doing it but I presented her with a Court of Criminal Appeals case and she followed the law. For that, I have a lot of respect for her.
On the other hand, a few years go, I was in front of another Republican judge on a motion to suppress less than a gram of cocaine. The State failed to present any evidence on an issue they had to prove in order to justify the search. During argument, I handed the judge a Court of Criminal Appeals case showing the state failed to meet its legal burden. The judge allowed the state to reopen its case and adjourned the hearing so it could bring forward the evidence it missed. The state was excused for sloppy lawyering and my client got screwed. I’ve never trusted that judge ever since.
I’ve practiced before good judges and bad judges, both Democrats and Republicans, both state-oriented and defense-oriented. What makes a good judge is that they will suck it up and rule like the law requires even if they hate the outcome.
The slates put fear into judges’ hearts. If they make even a single ruling against what the judges think slate makers want, they are afraid they will lose their benches in the next primary. Regardless of how you stand on the political spectrum, ask yourself: if I were in front of a judge as a litigant, would I want that judge to feel free to apply the law fairly or would I want that judge to be looking over his/her shoulder at the slate makers. It all depends on what you think the slate maker wants.
That’s no way to run a justice system.
I wonder how much of judge Karahan’s loss is due to slates who didn’t like his rulings and how much was due to his publicly soliciting Democrat voters to cross over into the Republican party primaries to save him? I think an unexplored lesson of this test case is no matter how much you try to appeal to Democrats by saying you are just like them they still won’t vote for you even in a blue wave. Or perhaps it was just poorly executed as some others like Davis seem to have figured it out. Of course that could have been a reaction to Abbott getting involved and a higher profile case.
Byron, my post to Houston Theatre People said (many of whom are my friends, 60 or so people in that group), in essence, “ Please consider voting for me in the R primary and vote for whomever you want in November…etc.). My opponent did the very same thing at the courthouse asking his D friends to vote for him in the R primary. My mistake was asking on FB. Reality is that EVERYONE asks for their friends to vote for them wherever they’re running. I misplayed this by asking on FB to a particular group mistakenly believing they alone would read it. Not No. 1. Lesson learned. In answer to your question about what motivated the slates, the vote ask or rulings, it sure wasn’t the vote ask – Lori Botello lost at about 30% same as me and it wasn’t an issue in her race, nor did Theresa Chang or Erin Lunceford – nor was it my rulings. It was the fact that I followed the law and judicial conduct rules when I officiated about 6 same-sex weddings of the over 600 I’ve done since 2003. The irony of it all is that the slates think defeating me will stop me officiating weddings or serving as a judge. Not No. 2.
Thank you,Byron. You’ve proved my point about non-partisan judicial elections.
I don’t know that it was proven or not as I made no argument for or against the notion. I am not particularly opposed to the idea of non partisan races.
Ever since Bill Clements was elected governor and began appointing Republican judges, we’ve seen partisan wipeouts in which judges — good and bad — were defeated in partisan landslides and replaced by judges — good and bad — of the other party. We first saw it in 1982, when Mark White trounced Clements in the governor’s race. Among the Republican judges who lost was a court of appeals justice who’s Democratic opponent was under indictment at the time for getting a handjob from a female client in the Harris County Jail. During that judge’s one-term stint on the court of appeals, he was known as “Judge Learned Hand.”
We saw similar wipeouts throughout the 1980s through last year. In 2008, when Obama carried Harris County, all but one Republican judge lost. And that survivor went down in 2016. His replacement has he makings of a good judge but still, he got there in a partisan wipeout.
In 2018, a lot of Republican judges are retiring. In the races for the open benches, some of the Republicans are far and away the better candidate and in others the Democratic nominee will make a better judge.
I don’t have an answer on stopping these partisan slaughters. After this year, judicial races will no longer be on the straight party lever and that might help.
We’ve got to find a better way to pick judges.