In a recent Atlantic interview, former Texas Supreme Court Chief Justice Wallace Jefferson described why Texans prefer to elect their judges:
The general idea is that judges ought to be accountable. They'll say, "What if the judge is lazy or corrupt or doesn't have the intellect to do the job? Shouldn't the voters have an opportunity to take them out of office?" . . . [But] the truth is that this notion of accountability doesn't work because the voters don't know the judges and they can't be expected to know the judges.
In your free time one day, take a look at the ballot in Harris County—that's Houston—in a presidential year. If you look at that ballot, there will be several pages of judges who are standing for election, from the Supreme Court, Court of Criminal Appeals ... There are district court judges, county court judges, probate judges, municipal court judges. In that one year in Harris County, there are probably 60 or 70 judges on that ballot. The voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation.
And we have the ability to straight-ticket vote here and so, in 2008, when I was on the ballot, it was McCain versus Obama, and Republicans in Texas by a large margin voted for McCain but they voted straight-ticket. So they voted McCain and every single Republican down the ballot. And in Harris County that year, Obama was extraordinarily popular so they voted for Obama and every Democrat down the ballot. I won [my] election easily, [but] in Houston there was almost a complete sweep of Republican judges -- they were replaced by Democrats.
That makes no sense. These votes are not based upon the merits of the judge but on partisan affiliation and if it’s not party affiliation it's the sound of your name. I said that almost all the Republican judges in Harris County lost—well, there were three exceptions. And in each of those cases, the Democratic candidate had an ethnic-sounding name. That's no way to differentiate among candidates. And if it's not partisan affiliation or the sound of your name, it’s how much money you can raise—which, as I said, undermines confidence in impartial justice.
So the accountability doesn't work.
His statement reminded me of some research that I started on judicial elections, focusing on district court judges in Dallas County in 2006. For Democratic candidates in Dallas County, 2006 was a very good year. In judicial elections, Democrats won every contested election. As former Chief Justice Jefferson notes, party identification, and not judicial competence, determined the outcome of the election.
This table contains information concerning the election and the ratings of the incumbent judges in the contested elections for the district courts in Dallas County in 2006. The ratings are from the Dallas Bar Association and the percentages are the percentages of “yes” responses to the questions about the judge’s knowledge, impartiality, judicial temperament and demeanor, and overall evaluation. The average is the mean of the scores in the four categories.
Source for Ratings: Judicial Evaluation Poll, 2005: https://www2.dallasbar.org/judiciary/poll_main.asp
The information from the table concerning the contested elections for which a rating of the incumbent judge was available, the following chart was constructed.
Note that the trend line shows only a slight positive relationship (R2=0.0233) between difference between each Democratic candidate’s vote total and the Republican opponent’s vote total and the evaluation of the incumbent judge. If the voters had known the judges and their competence, those judges with the higher ratings should have lost by a smaller margin (or even won re-election) than those judges with the lower ratings. However, the small positive correlation affirms that a judge’s ability as a judge has little effect on whether he or she is re-elected.