19 justices occupy the Dallas and Austin appellate courts, all republicans. 12 of those seats were up for election last night. Democrats won every single one of them. Now what?
Like it or not, judicial elections in Texas are a partisan affair. Little-known lawyers are elected (or appointed) because of their proximity to a political figure. And long-tenured, sitting justices are tossed out based solely on their party affiliation.
The benefits, or not, of such a system, are up for debate. See, e.g., “Judges Who Are Elected Like Politicians Tend to Act Like Them.” What is not up for date are last night’s results. The “blue wave” didn’t carry Beto to victory , but that wave certainly crashed hard in Texas appellate courts.
Take a look at two appellate courts for example, the Third Court of Appeals in Austin and the Fifth Court of Appeals in Dallas.
Fifth Court of Appeals (Dallas)
Prior to last night’s election all thirteen justices were Republican. Last night, eight of those seats were up for election. Democrats took all 8. A summary of races and outcomes:
- Chief Justice*
- Douglas Lang (former Place 11)
- Robert Burns
- Place 2
- David Evans (I)
- Place 5
- Craig Stoddart (I)
- Erin Nowell
- Place 9
- Jason Boatright (I)
- Bill Pederson
- Place 10
- Molly Francis (I)
- Amanda Reichek
- Place 11
- John Browning
- Cory Carlyle
- Place 12
- Place 13
- Elizabeth Miers (I)
- Leslie Osborne
*Repubs, red; Dems, blue; Incumbent (I); winner, bold. You know the drill.
Eight out of thirteen. That turnover is remarkable. Politics aside, any organization that replaces almost two-thirds of its members is going to have serious shifts in institution and identity. It’s worth taking a moment to give a shout-out to staff attorneys and court staff who will keep the machine chugging along during this major transition.
Third Court of Appeals (Austin)
So too in Austin, all six justices are republican. Last night four of those seats were up for election. Again, Democrats took all 4.
- Place 2
- Cindy Olson Bourland (I)
- Edwards Smith
- Place 3
- Scott Field (I)
- Chari Kelly
- Place 5
- David Puryear (I)
- Thomas J. Baker
- Place 6
- Mike Toth
- Gisela D. Triana
That turnover will have serious impacts on the court and those practicing in front of it in the near future.
So what does it all mean?
On my college bookshelf I had a book titled “What does it all mean?” My roommate would often ask if I had finished the book and could finally reveal the comprehensive, unifying theory of the everything. I don’t think that I ever had a satisfying answer (or even finished the book). It is, nonetheless, almost always a fine question to ask: what does it all mean? I’ll offer (borrow) two takeaways: 1) the law should stabilize political upheaval, and 2) experienced appellate practitioners are as valuable as ever.
“Judges are not politicians, even when they come to the bench by way of the ballot”
Whereas politicians must respond to the preferences of their supporters, judges must strive for objectivity and independence. Indeed, as Hamilton (again, borrowing from those smarter than myself) noted in Federalist 78:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community
Behind closed doors many judges will tell you that politics have no place in the court room. Partisan elections are simply an accepted, though unwelcome, way of life. It defines how a judge gets to the bench, but not how she acts once she is there. To that effect, there will undoubtedly be changes. But how we actually practice law should remain constant. The law, not politics, will buoy the courts.
And, as a closing thought, D. Todd Smith’s observation over at Texas Appellate Law Blog, hits the mark:
In this new reality, I think the role of experienced appellate practitioners will be more significant than ever. We are most effective when we assist courts in understanding the case, the law, and how to reach a reasoned outcome faithful to both.
It is, regardless of political affiliation, a fascinating time to practice law before these courts.