Four Texas State Appeals Courts Change Hands In 2019. What This Means For Texans And The Courts.

Jan 2, 2019

There are more than 3,000 judges in Texas - and in the Lone Star state, they are elected. In the midterm elections, Democrats took control from Republicans in four of the state's 14 appeals courts. Will Texans notice this shift in the balance of power? 

Wallace Jefferson is a former chief justice of the Texas Supreme Court. He was appointed in 2001, elected in 2002 and named chief justice in 2004. He is a Republican - and he is not a fan of electing judges.

"Voters either elect those judges by voting straight ticket. That's going to be eliminated for judges in the next election. ... Or they would vote based on the sound of the judge's name, you know, if it's a popular-sounding name they go for that. Or they vote based on what they've heard about the judge in radio commercials or TV ads," says Jefferson. "That's all marketing. And none of that is designed to really inform the voters about the merit of that judge."

Given that, you might think Jefferson would have political concerns about the last election flipping four of the state's 14 appeals courts to Democratic control. Jefferson says he believes the best judges don't let partisan politics get in the way of their work. But he does worry about what losing that much judicial experience could mean for Texans and the courts.

Here is a transcript of his interview with KUT. It has been edited lightly for clarity. You can hear the full interview below.

Jefferson: I think it does not matter whether a judge is Republican or Democrat. If they're doing their job — their job is to objectively decide legal questions that are presented to them — it shouldn't matter whether you're Republican or Democrat, how you determine what a statute means or whether there is evidence to support a jury verdict or not. That's a question of theory.

There are a lot of people who would say no, it does matter that Republicans are more business-oriented — more conservative in their approach to the law and Democrats are more liberal and look to expand the various causes of action that [a] plaintiff is entitled to bring.

I think the real problem with this huge shift in judges is that we're losing extraordinary justices on the courts of appeals that have had great experiences —that have that have been great public servants. It happens both ways: from Democrats to Republican to Republican to Democrat, depending on the political atmosphere of the time. When it happens like this — when many judges are removed from office — just think about the experience that they have, the knowledge they have, the background to be efficient in the resolution of these cases.

KUT: I think everybody thinks that even though in theory a judge would be impartial and would follow the letter of the law, there's always concern that their own political leanings or thoughts are going to seep into that.

Jefferson: It's a valid concern. And I think what the voters need to do is evaluate that judge's background and history. Now, here's the deal: a judge — any judge — any person is going to have political leanings and ideas about these hot-button issues. I mean that's just natural; we're human beings and we are influenced by the politics of the day. But the judge's role is to set aside those personal interests and apply the law as objectively as he or she can.

KUT: You were expressing concerns of a large, new crew of judges coming in and concerns about efficiency and getting up and running. How would that trickle down and impact Texans?

Jefferson:  Let's just say that you're a business owner, and you have you've sold your business to somebody. But the deal has fallen through. And so now you don't have your business. And it's all tied up in litigation. And that was the source of your income — of your providing for your family — and you're trying to get that resolved, and so you go to trial and you get a judgment and then you go to appeal.

And what if it takes not four months or five months but two years for that case to be decided? What do you do? How do you make a living? Or, let's say that you have a divorce proceeding. And the question is: who gets custody of the children? And that is not decided for three or four or five years. That has real tremendous consequences on your life and your business. And you think about that across the spectrum of cases that come before the courts. The axiom is justice delayed is justice denied. I believe that's true.

You don't want delayed justice. You want to be able to have an efficient system where people know what their rights are and a relatively quick period of time. And I think that's the danger with any transition. And I'm not talking partisan. It doesn't matter if the transition is from Republican to Democrat or Democrat to Republican. It's a  question of getting the cases decided in a timely manner.

KUT: Why do you think we saw such a swing in this particular election in the judgeships?

Jefferson: I think a big reason was Beto O'Rourke. He ran for the Senate against Ted Cruz and there was a lot of excitement across the state about his candidacy and that drove the vote out — especially on the Democratic side. And with straight ticket voting, there were many voters that vote at the top of the ticket for Beto O'Rourke on the Democratic side and then just vote for every Democrat down-ballot. And so all the Democrats in a contested judicial race were getting the advantage of the huge turnout.

KUT: Straight party voting is going away, and Texans won't be able to do that in subsequent elections. What do you think that will mean for these judicial elections?

Jefferson: I think it's going to be incumbent on the candidates to now get more information out about their qualifications so that the voter who walks into the ballot booth will have something — some measure of objective information — to determine whether or not to vote for the person.

So the candidates and those that are interested in judicial campaigns are going to have to get a lot more information out for the voters. They're going to have to do a whole lot more homework. I want to say this: for those who believe that there is real distinction between Republicans and Democrats, the voters can still go down the ballot and vote for all the Republican candidates or all the Democratic candidates.