Bench Memos

Law & the Courts

Texas Lieutenant Governor Affirms Support of Partisan Judicial Elections

Lieutenant Governor Dan Patrick (R., Texas) at the capitol in Austin, July 14, 2017 (Jon Herskovitz / Reuters)

Earlier this month, Texas lieutenant governor Dan Patrick released a statement expressing his continued support for partisan judicial elections in Texas, noting that the state “has one of the best judicial systems in the country.” I couldn’t agree with Lieutenant Governor Patrick more.

Patrick’s statement followed the first meeting of the newly formed Texas Commission on Judicial Selection, which has been tasked with “evaluating the merits of alternative methods of judicial selection, to produce findings and recommendations for reform to the Legislature by December 31, 2020.”

The Commission is being chaired by David Beck, a Houston trial lawyer and former president of the State Bar of Texas. Beck hasn’t been shy about his antipathy toward partisan judicial elections, and last year wrote an op-ed in the Houston Chronicle urging that the state’s partisan election system should be replaced with a “merit system,” i.e., the Missouri Plan. Beck wrote: “To fix this decades-old problem [of partisan judicial elections], we need a bipartisan appointment system for judicial selection, with retention elections to remove, if necessary, poorly performing judges.”

Not hiding his agenda at the Commission’s first meeting, Beck reportedly asked during the first hour, “Is there anybody who believes that partisan elections are the way to go?”

Following the meeting, Lieutenant Governor Patrick reminded the Commission that he “expect[s] the [Commission’s] members to have an open mind on every issue — including the partisan election of judges.” Patrick also suggested that “The commission will need to make a compelling argument to the people and legislators to change the current system.”

While some Texas Republicans may be tempted to abandon the partisan election system in the wake of major down-ballot losses in 2018, adopting the Missouri Plan (or “merit selection,” as its advocates like to call it), would be a huge mistake.

As I have written here many times over the years, while the “merit system,” with its purported focus on qualifications and claims of judicial independence might sound attractive on its face, over the last 80 years, history has proven the merit system/Missouri Plan to be a disaster for conservatives.

Professor Brian Fitzpatrick of Vanderbilt University Law School has done extensive empirical research studying the ideological impact of various methods of judicial selection across the country. In 2016, Fitzpatrick found that state appellate judges in Missouri Plan states are markedly more left-leaning than the electorate those same states. His study showed that “judges in merit selection states were on average 16% more Democrat than the public in those states as measured by their federal house [Congressional] votes and 14.6% more Democrat than the public as measured by their state house votes.”

But it’s not just empirical studies that suggest the Missouri Plan caters to liberals. I have traveled the country discussing this topic with countless conservatives who have shared the horror stories of what that form of appointment has done for their state. Take a look at nearby Oklahoma, or even Kansas, Iowa, and Missouri itself, and observe just how left leaning the courts are compared the local population. This is not an experiment that has ended well for rule of law conservatives.

And this should come as no surprise, because the Missouri Plan removes the selection of judges from the purview of the general public, and places it in the hands of the elite, left-leaning few — namely state bar associations. And that was precisely the intent of the progressive-era activists who dreamed up the Missouri Plan: They wanted to leave judicial selection to “the experts.” The cost? The loss of any public accountability with the selection of judges. In merit selection states, judges are retained 99 percent of the time because there is no opponent on the ballot. This would be a huge loss to the Texas electorate, who in the words of Patrick “feel strongly about voting for their judges.”

Patrick is correct to praise Texas’s system of partisan judicial elections. Over the years, it has worked remarkably well and produced some of the best judges in the country — some of who are now serving with distinction as federal district and appellate judges. As the Commission continues to evaluate judicial selection in Texas this coming year, I hope it will heed Patrick’s wise words, as well as the insight and experience of the many, many conservatives who have studied the Missouri Plan method of judicial selection or had to endure it.


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