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DeLay Judge Shuffle Underlines Texas Judicial Election Problems

COMMENTARY | November 12, 2005

Partisan races, $1 million or more in contributions needed and guess who the big donors are. Some are looking to change this court system

By Dave McNeely




The judicial shuffle after Tom DeLay's successful effort to get a judge other than Democrat Bob Perkins of Austin to hear his conspiracy case underlined yet again the problem with how we select judges.

Republican DeLay complained Perkins had given more than $5,000 in the last five years to Democratic candidates and organizations, including $200 to MoveOn.org. That group has blasted DeLay in TV ads in his Sugar Land congressional district for his heavy-handed tactics as House Republican Majority Leader. GOP rules forced DeLay to step aside after his indictment.

DeLay succeeded in getting Senior Judge C.W. Duncan to remove Perkins. But Travis County District Attorney Ronnie Earle borrowed DeLay's playbook and asked the next judge up the food chain, Judge B.B. Schraub, the administrative judge for the region, to pass up naming Perkins' replacement because he'd given campaign cash to Republicans.

Schraub removed himself, passing the job to Texas Supreme Court Chief Justice Wallace Jefferson. Whoops, more problems. Jefferson in 2002 had the same campaign treasurer and fundraiser - Bill Ceverha and Susan Lilly - as DeLay's organization, Texans for a Republican Majority Political Action Committee, known as TRMPAC.

But minutes before Earle's motion to remove Jefferson arrived, Jefferson named retired San Antonio District Judge Pat Priest, a Democrat, to hear the case. Seasoned onlookers say Priest is highly regarded as wise, smart and fair.

But the whole system of partisan elections of judges leaves us wide open to continuing charges that justice is for sale.

"I just think as long as judges are compelled to raise a million dollars or more to run a statewide race, we'll never be able to completely remove the public's concern about the judges' impartiality," said one of them a few years ago: John Cornyn, a Republican who has since gone on to the U.S. Senate.

Periodically, there are attempts to limit the influence of money in judicial races. That is laudable, but unless candidates get our attention, or are from our party if that's important to us, we won't know to vote for them. In most large urban counties, and most appellate courts, most voters wouldn't know their judges if they came up and bit them.

Those most interested in who sits on the bench are lawyers that practice before them, and businesses and insurance companies most often sued. Guess who puts up most of the money for the elections? 

There have also been efforts to limit partisan sweeps, where qualified judges are wiped out simply because of who's at the top of the ticket. That happened to Democrats in 1994 in Harris County. It won't be long before that's happening to Republicans in Dallas  County.

Also, the fact of selection by election keeps some very qualified lawyers from applying.

Suggested changes have been smaller judicial districts in urban counties; appointment of judges, who then stand for non-partisan retention elections when their term expires; or non-partisan elections.

The Texas Senate, led by Democrat Rodney Ellis of Houston and later Republican Robert Duncan of Lubbock, has occasionally passed measures to have appellate judges appointed, with retention elections. District judges initially would be chosen in non-partisan elections, and run in retention elections at the end of their term. But the proposals have never cleared the House, and in 2005 didn't even make it out of Senate committee.

Both major political party platforms endorse the current partisan selection system. Republicans now benefit from partisanship almost as much as Democrats used to. So most Republicans in charge of the Legislature and every statewide office have little incentive to change.


But keeping partisan judicial elections means many judges will take or give campaign money, which can lead to bias charges.

Maybe some bipartisan group will seize this opportunity to try to remove some potential taint from the system. Just because it was spotlighted by Tom DeLay -- the guy facing trial for conspiring to funnel corporate money into elections -- doesn't automatically make it a bad idea. 

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