A. Background on Judicial Elections
Unlike the federal model of judicial selection, the model for the selection of state judges has undergone significant change throughout American history. (1) Until the mid-1800s, state judicial selection generally adhered to the federal model, emphasizing the appointment of judges. Typically, judges were selected by gubernatorial appointment coupled with confirmation by a special commission or the legislature; in some cases, judges were appointed directly by the state legislature. (2) The emergence of Jacksonian egalitarian democratic ideals in the nineteenth century brought about a growing belief that judges, like other public officials, should be accountable to the voting public. (3) As that ideal gained acceptance among reformers, states began moving away from legislative and gubernatorial appointment and toward the selection of judges by popular election. In 1832, Mississippi became the first state to provide for the selection of its judges by popular election. New York followed in 1846. For the next sixty-five years, every new state to enter the Union provided for some or all of its judges to be chosen by popular Election. (4)
When popular judicial election began in Mississippi and New York, judges typically ran on partisan ballots, campaigning alongside their fellow party candidates. In the latter part of the nineteenth century, however, Progressive reformers grew increasingly concerned with the influence of party bosses, who often gave judicial nominations to the party faithful, instead of the most qualified candidates. (5) To quell judicial selection by party leaders, reformers pressed for nonpartisan judicial elections. (6) In the closing decades of the 1800s, the legal profession also responded to the extraordinary influence of parties over judicial selection. Lawyers began organizing bar associations largely to promote judicial selection based on qualifications rather than party patronage. (7)
In the mid-twentieth century, reformers began advocating the "Missouri Plan," which removed the initial selection of judges from popular control but retained the Jacksonian ideal of electoral accountability. (8) Under this plan, judges are appointed by a governor from a list prepared by a judicial nominating committee. The judges appointed under this plan then run in periodic, uncontested "retention" elections where voters are allowed to determine whether the judge remains in office. (9)
Contested elections, however, have not been eliminated. Thirty-nine states still select some judges through popular election, and eleven states select their supreme court justices in partisan elections. (10) In spite of the Missouri Plan's initial popularity, the wave of reform that accompanied its early years has waned. Judicial elections are now the norm and their weaknesses require wholesale reform. A clear understanding of judicial elections will shed light on how to improve the process of selecting judges. This Article focuses on Texas, whose history often foreshadows the experience of other states.
B. The Case of Texas
In its first five years of statehood, Texas was a microcosm of the early national experience with state judicial selection. Initially, judges were appointed by the governor and approved by the Texas senate. (11) Then, in 1850, the influence of Jacksonian Democracy led to the adoption of judicial selection by popular election. (12) Under Reconstruction, Texas returned to the gubernatorial appointment of judges. (13) However, largely in response to abuses of the gubernatorial appointment power during Reconstruction, Texas included a provision in its current constitution, adopted in 1876, for the selection of judges by popular election. (14) While the Texas constitution does not require that judicial candidates run on partisan ballots, Texas election law encourages judicial candidates to run as party Nominees. …