LAW Courting Disaster

In the otherwise bleak chambers of Dallas Democratic Judge R.T. Scales, there once hung a fancily embroidered sign that read, “A Judge is a Lawyer who knows the Gov-ernor.” The epigram had the ring of truth when Democrats ruled the courthouse, Republicans were a rarity, and native Tex-ans didn’t have to identify themselves by their bumper stickers.

Prior to 1978, many Dallas Democratic judges were appointed (by Democratic gov-ernors) to fill the unexpired terms of other Democratic judges. jJacking Republican opposition, these Democrats then sailed through the November election, given a token stamp of approval by a few voters. Many of the appointments were unabashedly political, the mutual backscratchings of party loyalists. But whether they were picked by the governor or the Democratic party machine, these candidates were playing in the only game in town. Getting the nomina-tion in the primary was tantamount to victory in November. Absent scandal-and some-times in spite of it-the judge could figure on a long judicial career. This system prevailed for 110 years following the Civil War.

With the rise of the Republicans, all this changed. In the late Seventies, Republicans began to challenge incumbent Democratic judges. Aided by Reagan’s extra-long coat-tails in 1980 and ’84. Dallas judicial elections became fierce partisan battles with Republicans turning Democrats out of office in droves. Many Democratic incumbents up for reelection faced a blunt choice: convert to the Republican party or face defeat at the polls. Between 1980 and 1985, twenty-four Democratic judges heard the call and switched parties. Said Dallas Destrict Judge Richard Mays, one of the last judges to switch, “My political philosophy has nothing to do with my being a judge. The reason I’m switching is that to be a judge in Dallas County, you need to be a Republican.” According to University of Texas at Dallas political scientist Dr. Anthony Champagne, “Party affiliation in Dallas County has surpassed incumbency as the strongest indicator of judicial electability.”

The political reality is that only 10 percent of the judges left in the Dallas County Courthouse are Democrats. One of the last holdouts is Ron Chapman, criminal district judge, currently up for reelection in November. Judge Chapman’s race against attorney Tim Banner, a political unknown, is considered the bellwether of Democratic political strength. “If Chapman can’t win, no Democrat can,” says one courthouse observer. “He’s a two-term incumbent with hight mards from the legal community, a tough campaigner with the best name recognition of any Dallas judge, thanks to the popularity of a KVIL radio personality of the same name.” But Chapman-the judge, not the disc jockey-is running scared: “If there is a Republican lever pull like in ’84, I can’t get elected and it’s got nothing to do with me or the job I’m doing-it’s just politics.”

Some argue that it’s absurd to force judges to become politicians-Democrats this year, Republicans the next-hitting the campaign trail with a gavel in one hand and a cup in the other. Others say that judicial elections, political though they may be, are the only way the public has to rid itself of bad judges. Of course, just who attacks and who defends the system is often a question of who is in power. Whoever wins the elections is, not surprisingly, in favor of the process that got them there.

But the flip-flop of party politics is no way to settle the issue. Nagging questions remain about the quality of a judiciary selected not on merit, but on party affiliation, slick media campaigns, voter apathy, and confusion. Serious questions remain about the integrity of a system that appears to compromise its judges by forcing them to raise campaign contributions from the very people-attorneys and litigants-whose fate and fortunes they must decide. These questions are being directed to several members of the Texas Supreme Court now under investigation by a Texas legislative committee. They are questions answered only when set against the backdrop of a political war in which the Texas judiciary finds itself as Texas rapidly becomes a two-party state.

Judicial politics is a world all its own played by its own set of rules. Handicapped by a code of conduct that would relegate all campaigns to boredom if strictly followed, judicial races are almost predestined to be low-profile, low-interest affairs. No judicial candidate may comment upon issues that might someday be heard in court; to do so might seem to prejudge a case that the candidate may someday hear. A candidate is reduced to talking about his qualifications, his integrity, his wife, family, and parents; or to pointing out that he’s an incumbent, a veteran, or the only certifiable Texan in the race.

So what’s a promising, but largely unknown, Dallas judicial candidate to do? If he’s a Republican in a contested primary race, party affiliation won’t help; everybody’s a Republican. If he’s a Democrat running in the general election, party affiliation won’t help either; independent voters must be targeted and attracted. In either case name identification becomes everything.

That’s why Texas ballots are loaded with the names of candidates elected largely upon the strength of their given or recently assumed names. Who can forget the infamous Don Yarbrough, not the Don Yarborough who ran for governor, or the Ralph Yarborough who served terms in the U.S. Senate, but Don Yarbrough, the Democrat with no judicial experience, the target of at least fifteen pending lawsuits, a disbarment proceeding, and a suspect in a murder investigation. Yarbrough was exposed, igniting a scandal, but the electorate was slow in getting the news. He was elected to the Texas Supreme Court in 1976 and served six months before resigning.

The importance of having a politically appealing name became evident in last May’s Republican primary race for the Texas Supreme Court. Nathan Lincoln Hecht, one of Dallas’s highest rated judges, out-spent, out-endorsed, and out-campaigned his opponent-and still lost. Some say his name was too ethnic, too Jewish or black, too hard to pronounce. The winner, perennial candidate Charles Ben Howell, is one of the lowest rated Dallas County judges in the Dallas Bar Association’s judicial poll, whose past includes a contempt citation and a professional disciplinary lawsuit. But Howell is blessed with a “good ole boy, Anglo-Saxon kind of name,” says one courthouse observer. Howell managed to keep his name in the newspapers statewide by filing a lawsuit to change the seat he was running for-from Place 1 to Place 3. The all-Democratic Texas Supreme Court ultimately ruled against Howell and gave him his best campaign issue: the “political hatchet job” done on him by the Democrats. Howell faces former state Senator Oscar Mauzy in November.

If a candidate doesn’t have a name like Ron Chapman, John Marshall, Sam “Houston” Clinton, or even Charles Ben Howell, how can he separate himself from the other fifty or more judicial candidates nobody knows? Perhaps with the help of a political consultant, he can build his name identification. This is accomplished primarily through billboards on Central Expressway that try to persuade drivers to ponder the merits of some judicial candidate while contending with the next 1,000 feet of road construction.

Candidates also seek endorsement from the legal community-from the Dallas Bar Association, the Mesquite, Garland, and Irving bars, any organized group of lawyers. Although endorsements appear to be a mark of quality from the legal community, endorsements are often accused of being popularity contests, voted upon by big law firms en block, or by lawyers who seldom practice in front of the judges they endorse. One group, the Committee for a Qualified Judiciary, conducts thorough interviews of candidates. Although its endorsements are given on a nonpartisan, merit basis, CQJ is often accused of bias in favor of incumbents.

Endorsements are often trumpeted in direct mailings targeted at party loyalists and independent voters. Recently, in some Republican races, mailings have been used to question the bona fide Republican credentials of several candidates. Averil Sweitzer, candidate for the Dallas Court of Appeals, sent a large mailing to Republicans, telling them that his opponent, Sue Lagarde, had “never done anything for the party and has in fact voted in the Democratic primary as recently as the last two elections.” Says Republican political consultant Carol Reed, “It’s not a qualifications issue-but when there aren’t any other issues, it becomes a big one in the primaries.”

And what does it all cost-all the pomp and politicking, all the paid political advertisements? Dallas Appellate Judge Pat McClung says it costs about a dollar per vote to win the Republican primary-and close to 91,000 votes were cast for Dallas Republicans last May. Judge Ron Chapman planned to spend close to $100,000 in his general election campaign. Figures on statewide judicial elections range up to $1,000,000.

Raising that kind of money creates its own set of problems for judicial candidates, who are once again constrained by their code of ethics. To maintain the appearance of propriety, judges, unlike other candidates, are not supposed to pump their constituents for money. But most people don’t care about judicial races, so the candidates are forced to turn to those few who do-lawyers, litigants, people with an economic stake in the outcome of a pending case. It’s not illegal for lawyers to give and judges to take; it just doesn’t look good, since it seems to compromise a judge’s independence. But big law firms from Dallas and Houston give generously. So do small law firms, especially those interested in staying in the good graces of a particular judge.

More recently, large campaign contributions, particularly in Texas Supreme Court races, are coming from special interest groups and political action committees (PACs). Some critics blame the Texas Trial Lawyers Association for helping to elect a Supreme Court with a definite plaintiffs’ bias, a court that allows expanded recovery in negligence cases, car accidents, and medical malpractice. Defense lawyers, along with insurance companies, doctors, and dentists, are now getting into the act, forging a political alliance known as the Texas Supreme Court Justice Committee, a PAC committed to changing the philosophical bent of the court.

It’s little wonder, in such a politically charged context, that some critics question the integrity and independence of several members of the Texas Supreme Court, two of whom are subjects of a legislative probe by the House Judicial Affairs Committee. Democratic Justices C.L. Ray and William W. Kilgarlin have been charged with leaking confidential information from the court to interested attorneys, wrongfully transferring a case for the alleged benefit of wealthy contributors, and “operating on an injudicious, friendship basis,” according to Bob Henderson, general counsel of the legislative counsel. The judges have allegedly gone on fishing trips and allowed clerks to take trips to Las Vegas-all at the behest and expense of campaign contributors who just happen to be lawyers and litigants.

Without commenting on the allegations against his brethren, Chief Justice John Hill Jr., a Democrat, citing excessive political contributions in judicial races, recently threw his support behind a system of judicial selection based on merit. Justice Hill has proposed that the state adopt a system whereby a blue ribbon, bipartisan commission composed of lawyers, judges, lay people, Republicans, Democrats-all ethnically and racially balanced-would submit a list of five nominees to the governor for his appointment. After a time, the appointed judge would face a retention election in which voters would decide whether or not to keep him.

Critics of the plan argue that any appointment system creates “an elitist judiciary” and say that politics will inevitably be a factor in the selection. They brand the system as undemocratic; pointing to the federal bench with its lifetime appointments, they say it will breed tyrannical judges unaccountable to the public will.

Numerous solutions are being bandied about, each with its attendant host of critics. In each of the last four sessions of the Texas Senate, legislation has been introduced to alter or modify the system for electing judges. Bills to introduce a merit system to make elections nonpartisan, to take judges off the ballot, have all died in committee.

Obviously, judicial reform is essential. Although each alternative has some human failing, a compromise must be reached between a judiciary besmirched by partisan politics and one that is aloof from the will of the people. The Texas Legislature must renew its efforts to depoliticize the judiciary, to prevent its eventual breakdown by the impossible demands being placed upon it.