The Big Problem

2008 Court of Criminal Appeals election results:

Place 3:

Republican Incumbent
3,940,954
Democratic Candidate
3,477,426
Libertarian Candidate
215,427

Place 4:

Republican Incumbent
4,035,683
Democratic Candidate
3,336,944
Libertarian Candidate
249,921

Place 9:

Republican Incumbent
4,709,086
Libertarian Candidate
1,041,499

(Take from that what lesson you will about my chances of prevailing; clearly, the Libertarian candidate in a race for a seat on the Court of Criminal Appeals faces a steep uphill battle.)

There are not seven million voters in Texas who know enough about the Court of Criminal Appeals to choose intelligently between two candidates for a seat on that court. About seven million voters voted in Court of Criminal Appeals races.

There are not a million voters in Texas who know enough about the Court of Criminal Appeals to choose intelligently between two candidates for a seat on the court. Did over a million people vote for a semi-retired corporate lawyer rather than the judge who wrote the book on Texas evidence because they thought the former would be a better judge on Texas’s highest criminal appellate court, or because they were going to vote against a Republican no matter what?

I doubt that there are 200,000 voters in Texas who know enough about the Court of Criminal Appeals to choose intelligently between two candidates for a seat on the court. Yet in the closest 2008 Court of Criminal Appeals Race there was more than a 200,000-voter difference (that is,  the result would have been different only if more than 200,000 voters had voted for the D ) between the winner and second place.

The number of Texas voters who could tell you what the Court of Criminal Appeals does amounts to a rounding error in the election returns. Court of Criminal Appeals Judges get chosen through ignorance. It might as well be random selection.

This, in case you were wondering, is a bad thing.

Once elected, judges have to run for reelection in partisan races, which leads to politically-motivated pandering, as well as to outright corruption like this.

This is a very bad thing.

Get rid of partisan election of judges, and you’ll make judicial elections less interesting to those who can’t be bothered to educate themselves about the office and the issues. Fewer ignorant voters will vote in judicial elections, and the number of voters that it takes to make a difference will more closely approximate the number of voters who know enough to make an intelligent decision.

Free judges of partisan elections, and you’ll get better judges.

I’m amused when I hear federal judges described in the media as “a Clinton appointee” or “appointed by George H.W. Bush” as though this might give viewers some insight into their thinking. I’ve practiced before many federal judges, and never seen a pattern based on who appointed them. I know Bush appointees who are compassionate scholars, and I know a few Clinton appointees who are fascistic dolts.

Fascistic dolts notwithstanding, the quality of judging in federal court is generally much higher than that in Texas courts. I attribute that in large part to the fact that federal judges don’t have to worry about losing their jobs if they make unpopular decisions.

Free judges of having to run for reelection, and you’ll get better judges who don’t have to pander to the voters.

So what is a guy who thinks that the current system of choosing and retaining judges is ill-considered and often iniquitous to do?

The big problem is an electorate that hasn’t been properly educated about the office and the candidates. I don’t want a single vote from anyone who can’t explain to me what my job will be if I’m elected. So I can start educating people, one at a time, right here and on the street.

Comments 3

  1. Kim Keheley Frye wrote:

    Mark-

    Very happy to support you as a candidate for Judge. I think partisan elections are better, but they lead to appointments that never end because the elections because superfluous. A sitting judge has not lost in our county since the elections went non-partisan- so one appointed- always in office.

    However, I will support you for Judge. Let me know where to send the check because I do know it takes money. However, I will hate to see you quit writing and become a referee rather than a player.

    Posted 13 Mar 2012 at 3:42 am
  2. Tamara wrote:

    A-MEN!
    Though while I agree that Justice positions should be non-partisan, for now that’s how it is and even the people who WANT to make an informed decision are having a hard time finding information.

    We recently moved from Seattle to Galveston and this is our first election here. I’m having a helluva time researching candidates for these positions, which I believe are important. Why is this so hard? Back home they would send out voters guides in each district with at least a statement from each candidate.

    There are people out here who want to make an educated decision and are if you want educated votes it also needs to be much easier to find out about all the candidates – not just the ones whose parties bought them a web designer and a SEO strategist. It’s possible that, as with everything this year, we just haven’t found the right place yet so if anyone can tell me where to get this information (central and equal) I’d appreciate it. Back to Google for now.

    Meanwhile, you’ve got my vote. Thanks for making your background and rationale available!

    Posted 27 Oct 2012 at 2:20 pm
  3. Mark wrote:

    I don’t know. I’ve written hundreds of thousands of words online about my philosophy. Most people haven’t.

    You could learn a great deal about incumbents by reading the opinions they’ve written (especially the dissents), but the opinions generally seem so reasonable at first blush that you would need a law degree and years of experience to see the flaws.

    Thank you for your vote.

    Posted 27 Oct 2012 at 5:48 pm

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