Wait, That's How We Elect Judges?

Carter Cunningham

Edited by Keerthi Chalamalasetty, Anikieth Datla, Mac Kang, and Sahith Mocharla

When we walk into a courtroom, whether as a juror, a family member, or a defendant, it feels instinctual to look towards the judge as an unwavering source of fairness and competence. Faith in our judges is a fundamental tenet of the judicial system; it is imperative that we can trust their decisions and believe they are well-qualified and unbiased in their discretion. Judges, however, are not the infallible beings we strive for. They are not created in a laboratory and trained from birth to become the perfect arbiters of justice. Their quality is largely determined by the kind of person chosen to assume the bench. This selection, however, is not one that many people give detailed attention to. It may come as a surprise that the method used to select judicial candidates widely varies across the United States, ranging from differing practices such as appointment to elections, to selection by committees. Each state’s choice to abide by a specific procedure is the result of a legal debate about the role of a judge in society and in relation to the public. Yet not all of these methods are created equal. Texas utilizes partisan elections at every level of the state judiciary, a system criticized by a majority of Texan lawyers and judges [1]. This criticism stems from the fact that partisan elections weaken judicial independence by potentially making judges beholden to political parties to become elected; are subject to challenges such as low voter turnout and information availability; create the appearance of bias due to the influence of special interest groups during campaign funding; and potentially elevate unqualified candidates to the bench. To remedy these weaknesses, critics have called for internal changes to model Texas’s selection of judges around different methods used in other states. 

At the state level, the process for selecting judges is divided into four main categories: election, appointment, appointment plus election, and legislative election. The least common method is legislative elections––in which state legislatures select and vote on candidates for judicial office. Some states, meanwhile, use appointment-based systems, wherein the governor will appoint some or all appellate or trial judges, and with the consent of at least one house of the state legislature—although this process can be more complicated and differs by state [2]. Other states use a hybrid system between appointments and elections, called the Missouri Plan, in which an independent commission nominates a select number of candidates, one of whom is chosen by the governor and who will face a re-election race to remain in office [3]. The most popular form of selection amongst appellate and trial courts is election: of the approximately 10,000 state appellate and trial court judges, 87% of them will face some form of election during their term [4]. The most common form is a non-partisan race, which is especially prevalent in selecting trial court judges, even in states that choose to use a different, less democratic method for deciding higher court judges, such as state appellate or supreme courts. In some states, including Texas, judges are instead elected in explicitly partisan elections [5]. To understand the reason behind Texas’s usage of partisan elections, one must understand the legal debate and historical context that rendered its usage in the first place. 

Legal scholars have attributed the distinctions in these systems of selecting judges to states’ respective opinions on how to balance the two critical ideas of judicial independence and public accountability. Judicial independence is the principle that judges should be free from any outside influences and rely solely on the law and facts of a case to make their decisions. Public accountability refers to the idea that judges should still be answerable to the public. Proponents for judicial elections make three main arguments for why ensuring public accountability should be favored and thus why elections are the most appropriate method. First, judges make decisions that impact public policy. Accordingly, citizens deserve a say in who is responsible for making decisions that affect not only the law but the citizenry’s everyday lives. For example, the Texas Supreme Court’s decision in Edgewood Independent School District v. Kirby (1989) struck down the state’s previous public school funding system for being inequitable, leading to the creation of the “Robin Hood” recapture program, which redistributes funds from property-rich districts to those that are underfunded. This system has significantly influenced how communities approach approving additional school funding, knowing that a portion may be recaptured, and it continues to affect the lives of millions of Texans today [6] [7]. Second is that legal decisions rarely fall under an ‘objectively’ clear interpretation of the law, and a judge’s personal beliefs and experiences will impact how they interpret relevant case law in making decisions [8]. Voters, therefore, will want to vote and ensure that their judges have values that match those of their respective communities––creating a unique incentive for participation. Third, requiring judges to engage with the public periodically during elections both allows and compels them to stay engaged with issues that matter to voters [9]. If judges were only appointed by their legal peers or members of the state government, they could theoretically remain isolated from the voices and issues of average citizens. 

Conversely, critics argue that the loss of judicial independence due to partisan elections undermines the benefit of allowing the public greater accountability over judges. The primary concern is that if judges are reliant on characterization within a political party to become elected, they may pander to voters to become elected [10]. Retired Judge Elsa Alcala pointed to the politicization involved in remaining as a judge as the ultimate reason for her retirement from the bench. She ran as a Republican candidate in 2012 and won election to the Criminal Court of Appeals, but felt as though she would no longer be a viable candidate for re-election due to the increasing popularity of more right-wing candidates amongst voters [11]. Judge Larry Meyers experienced similar circumstances; he won as a Republican candidate to the Texas Criminal Court of Appeals in 1992 and subsequently lost re-election in 2013 after switching to the Democratic Party in response to the more right-wing Tea Party movement [12]. The primary factor in these electoral losses was not the performances of either candidate as judges, as Judge Alcala had previously won re-election four times and Judge Meyers three times, but rather the party identifier next to their name on the ballot. Instead of being able to represent themselves to voters and engage with them on judicial matters, judges are pushed into narrow political boxes to be elected. 

Furthermore, the injection of politics into the judiciary can force judges to have to listen not to the electorate, but rather to high-level politicians. In 2021, the all-Republican Texas Court of Criminal Appeals rejected Texas Attorney General Ken Paxton’s appeal, stating he had the authority to unilaterally prosecute voter fraud cases. During the next election in 2024, Paxton supported opponents of three of the justices in primary elections, publicly criticizing the individual justices for their 2021 decision. The three justices went on to all lose their bids for re-election [13]. The legitimacy of the judiciary is severely undermined if the public thinks that the decisions of higher courts are dependent not only factual accuracy of the law and their individual judgment, but rather the will of high-level politicians. The impact due to the partisan nature of elections threatens to undermine the separation between the branches of government and the public’s confidence. 

There are a variety of further challenges that come with the nature of elections that diminish the effectiveness of the democratic intent to ensure that all voters have a voice in judicial processes. A multifaceted concern is whether the electorate is knowledgeable enough to make an informed decision about which candidates will make qualified judges. Voters are limited in two ways, both in attaining knowledge about judicial candidates and simply caring enough to be engaged with the voting process––notwithstanding the difficulty of accessing information for judicial elections. According to the American Bar Association’s Model Code, candidates in judicial elections are disallowed from making pledges or commitments regarding cases or issues likely to reach their courts that are inconsistent with the impartial performance of judicial office [14]. Therefore, judicial elections are not made up of much actionable content for voters to engage with. Combined with the fact that voters already turn out in much lower numbers for local elections compared to national ones, there is very little visibility or information on local judicial elections for voters to make an informed decision [15]. The impact of this disinterest can affect a candidate’s desire to run as well, as in 2016, Court of Criminal Appeals Judge Elsa Alcala refused the chance to run for re-election because the results for partisan judicial elections were too “random and unreliable” [16]. This dilemma is even more apparent in partisan elections, as voters will commonly vote for judges based on the little information that is available to them, which is typically surface-level identity flags such as the candidates’ gender, race, ethnicity, or political party affiliation [17]. A common strategy for voters is to simply vote down the ballot for their preferred political party, which negates the purpose of elections to serve as avenues for voters to hear a judge’s personal beliefs and experiences and how they will impact future decisions.

A large concern about the deficiencies of partisan elections is the increasing influence of special interest groups using financial donations in judicial campaigns to support judges who will generate ideologically favorable rulings. To use one example, trial lawyers may support liberal justices who are in favor of protecting individuals’ rights to sue. Meanwhile, businesses may support conservative judges who implement tort reform that limits the ability of plaintiffs to bring litigation against them [18]. A study of judicial campaign contributions in 2013 found that financial contributions had doubled in just two decades, from $83.3 million in the 1990s to $206.9 million in the 2000s [19]. While the study focused on state supreme courts, it found a significant relationship between business campaign contributions and favorable rulings in cases involving business matters [20]. Conflicting research has shown that there is no link between campaign contributions and judicial corruption due to the relatively small amount individuals can contribute and the psychology of outside pressure on judges to recuse themselves to maintain impartiality [21]. Even without conclusive analysis about the impact that financial contributions may have on judicial decisions; the appearance of judicial impartiality stemming from an at times arbitrary election system may have a large impact on public confidence in the court system. 

The requirement that a candidate for judge must put themselves through the hardships of a campaign, such as fundraising, putting themselves and their family under public scrutiny, organizing a campaign, etc., may also self-select out potentially qualified candidates from judgeships. The skills that make a qualified electable candidate for office and a qualified judge can be entirely different; those who fail at campaigning may have made remarkable judges. 

A consequential inverse is also true; lawyers who may not have the qualifications to pass approval from a committee of their peers may instead have better skills at campaigning and obtaining judicial office. Imagine two possible scenarios in which somebody runs for judicial office, one where the system works as intended and the other where it does not. The qualifications for becoming a district court judge require being a citizen of the United States and Texas, being between the ages of 25 and 74, and having been a practicing lawyer or judge for a combined eight years [22]. Candidate A can have amazing qualifications, such as years of experience in trial or at a prestigious law firm. On the other hand, Candidate B could be an unexceptional attorney with zero experience inside the courtroom, but a long enough career. But despite these differences in qualifications that could dramatically impact the quality of these candidates as actual judges, such information is often unavailable or lost on voters, especially when there is an easy point of comparison to something like party identification. 

With so many problems in the partisan election system that is used in Texas, what changes could Texas implement to reform its system? The wide variety of different systems within the United States itself offers many different perspectives on which system would do the best to ensure public accountability amongst judges, while also ensuring that judges remain qualified and feel like they have the independence to fairly render their verdicts. The American Bar Association’s preferred method for judicial selection is a commission-based appointive system with the following elements: a credible, non-partisan, diverse commission that reviews applicants to be approved by the governor, at least 15-year-long judicial terms or until a specified age, and judges are subject to judicial performance evaluations and disciplinary measures that include possible removal [23]. This solution attempts to solve the challenge of balancing the effectiveness of voters to select qualified judges and the ability of judges to retain their independence in making discretionary decisions, avoiding subjugating them to electoral whims and political volatility. However, it may have the potential issues of keeping judges isolated from changing political issues or concerns of their local communities. Critics of similar systems, such as the Missouri Plan, also lament the potential elitism of commissions that may be biased towards selecting candidates who appear in their network of peers, attended prestigious universities or social clubs, or adhere to racial and gender norms within the legal community, which heavily skews white and male [24]. 

Texas originally committed itself to a system of partisan elections to hold judges accountable to the public. However, the partisan nature of these elections has resulted in an environment where the election of judges can depend not on the public’s desires but on those of individual political actors. Furthermore, the concerns of the voters’ ability to discern qualified judicial candidates and their minimal buy-in to participate in local elections have demonstrated that, in practice, judicial elections are not the best barometers for the public’s desire for what a proper judge should look like. The end result is a judicial system where the public at large may feel less confident in the judicial decisions, especially when they deal with political issues, and lawyers may question the veracity of legal opinions from judges whose qualifications merely come from public popularity. This lack of trust cannot continue to exist in a healthy legal environment, and thus, Texas should look towards ways to reform itself. Through these reforms, Texas and other states can move past antiquated ideals for judicial elections and move to restore faith in the system by ensuring the most qualified and independent judiciary is in place. The main hurdle for this change is the lack of public interest in reforming judicial selection, as previous legislative efforts to move to an “appoint-elect-retain” system failed in 2003 and commissions on judicial selection in 2013 and 2020 were ineffective in driving change [25] [26]. Lieutenant Governor Dan Patrick characterizes the lack of interest that politicians feel from their constituents on this issue, as he “do[es] not believe that support [for a constitutional amendment for judicial reform] exists today” [27]. Fittingly, the future of Texas’s judicial system remains in the hands of the voters.

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[1] Houston Bar Associaton,. “How Should Texas Judges Be Selected?”, (Oct. 6, 2004), https://texaspolitics.utexas.edu/archive/html/just/features/0407_01/lawyerop.html.

[2] Porto Brian, May It Please the Court (3rd ed.), https://www.taylorfrancis.com/books/mono/10.1201/9781315170633/may-please-court-brian-porto.

[3] Sanford Gordon, Elected vs. Appointed Judges, Center for Effective Government (Feb. 20, 2024), https://effectivegov.uchicago.edu/primers/elected-vs-appointed-judges.

[4] see [1] 

[5] Judicial Selection: An Interactive Map | Brennan Center for Justice, https://www.brennancenter.org/judicial-selection-map (last visited Nov. 2, 2025). 

[6*] Judicial Learning Center, The Judicial Learning Center What Is Judicial Independence, (July 16, 2012), https://judiciallearningcenter.org/student-center/organization-of-the-federal-courts/judicial-independence/.

[6] see [1] 

[7] Edgewood Independent School District v. Kirby, 777 S.W.2d 391 (Supreme Court of Texas 1989).

[8] see [2]

[9] see [2] 

[10] see [1] 

[11] Anne Holsinger, Retired Judge Elsa Alcala on the Death Penalty in Texas, (2024), https://deathpenaltyinfo.org/resources/podcasts/discussions-with-dpic/retired-judge-elsa-alcala-on-the-death-penalty-in-texas.

[12] Johnathan Silver, Republicans Sweep Texas Supreme Court, Court of Criminal Appeals Races, The Texas Tribune (Nov. 9, 2016), https://www.texastribune.org/2016/11/08/texas-supreme-court-court-criminal-appeals-results/.

[13] William Melhado, Criminal Appeals Court Judges Targeted by Ken Paxton Head to Defeat, The Texas Tribune (Mar. 6, 2024), https://www.texastribune.org/2024/03/06/texas-court-of-criminal-appeals-republican-primary/.

[14] Rule 4.2; Political and Campaign Activities of Judicial Candidates in Public Elections, (2020), https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_4/rule4_2politicalandcampaignactivitiesofjudicial/.

[15] Rebecca Mears & Zachary Geiger, The Power of One Vote: An Examination of Close Federal, State and Local U.S. Elections and How Just a Few Votes Can Shape Policy, American Progress (Sep. 16, 2024), https://www.americanprogress.org/article/the-power-of-one-vote/#:~:text=the%20state.126-,Local%20elections,during%20that%20election%20were%20decided%20by%20fewer%20than%20100%20votes.158,-Conclusion. 

[16] Jolie McCullough, Texas Judge Who Questions Death Penalty Won’t Seek Reelection, The Texas Tribune (Dec. 29, 2016), https://www.texastribune.org/2016/12/29/judge-known-criticizing-death-penalty-step-down-te/ 

[17] see [1] 

[18] Kris Seago, Texas Government 2.0, The Court System of Texas, Judicial Selection Processes in Texas, OERTX(2023), https://oertx.highered.texas.gov/courseware/lesson/1090/overview.

[19] Joanna Sheperd, Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions (2013).

[20] see [17] 

[21] Damon Cann, Campaign Contributions and Judicial Behaviour (2002).

[22] see [21]

[23] Edward Madeira, Justice in Jeopardy (2003), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.opensocietyfoundations.org/uploads/1a79cf5d-79fc-4e5b-8479-16ad3d805160/justiceinjeopardy.pdf.

[24] Stephen Ware, Missouri Plan in National Perspective (2009), https://scholarship.law.missouri.edu/mlr/vol74/iss3/15.

[25] Emma Platoff, Dan Patrick Skeptical of Texas Judicial Selection Reform, The Texas Tribune (Jan. 15, 2020), https://www.texastribune.org/2020/01/15/judicial-selection-reform-obstacle-dan-patrick/.

[26] Mark Jones, The Selection of Judges in Texas: Analysis of the Current System and of the Principal Reform Options (2017), https://www.txcourts.gov/media/1449912/poli-pub-texasjudges-011317.pdf.

[27] see [25]