|
Attorney at Law
Board Certified -
Civil Trial Law - Civil Appellate Law
Texas Board of Legal Specialization
400 West 15th Street Suite 808
Austin Texas 78701
(512) 474-7054
FAX: (512) 474-5605
E-Mail: cducloux@hdcdlaw.com
|
|
|
THE DEMOCRACY DELUSION “The only sense that is common in the long run is the sense of change — and we all instinctively avoid it. - E. B. White The Scene: The Emergency Room at Brackenridge/Seton/ Hospital.com. NURSE: Mr. Fein? You took quite a blow on the head in that car accident. The x-rays show you have a sub-dural hematoma. FEIN: A what? A subhemal dur . . ? NURSE: Let’s just say a brain injury. We’re going to do surgery to relieve the pressure. Now, if you’ll just choose a surgeon. . . FEIN: What? You want me to choose a brain surgeon? I don’t know any brain surgeons! NURSE: Well here’s a list of doctors who signed up to do brain surgery. . . Just take a look and mark this ballot. FEIN: Did the hospital make up this list? NURSE: No. You have a right to choose. FEIN: Yeah, fine, but how did they get on here? NURSE: They went to medical school and paid a filing fee. FEIN: What?? That’s it? Can you tell me which one’s any good? I mean, this is an important decision and all. . . NURSE: We don’t do that. We just give you the slate. Could you hurry and choose? Your ears are bleeding. FEIN: But surely the hospital or someone has reviewed their qualifications before letting them sign the list, right? NURSE: No,. . . wouldn’t be democratic. That’s your job. You have the right to choose. Could you hurry? FEIN: But how am I supposed to know? NURSE: Ask your friends. Are you seeing any light in your left eye? The pupil’s dilated. FEIN: Holy cow! Okay let’s see. There’s a Bernstein on here. Jews make pretty good doctors. So he’s a possibility. And a Dr. O’Leary. Nah, never heard of an Irish brain surgeon. So she’s out. NURSE: Oh Berstein’s good. Did my dad’s hammer toes last fall. FEIN: A foot doctor? Holy cow! How’d he get on here? NURSE: Signed up and paid the fee. He says he’s branching out. FEIN: Okay, [fading] . . . I’ll go with the third choice, Jim Burns. . .sounds good and . . [passes out]. NURSE: [on the phone] Dr. Burns, we have a sub-dural hematoma patient, in need of emergency surgery. Yes sir, that involves the head. . . uh huh. . . inside the head, yes, sir. Could you come over. . . yeah, we’re near IH 35. Lotsa flashing lights. Now, if you think that’s funny, let me tell you how we choose judges. It’s a riot! Can we talk? About how much longer are we, as the would-be fiduciaries of the legal system, going to put up with the farce we call judicial elections? I don’t want anybody’s shorts in a wad, as I promise, I make no particular reference to any candidate, but rather at this outdated political joke. I know, I know . . . many of you will blast me with the old rhetoric that “the people the right to choose [blah, blah] . . .” So did Mr. Fein in the scenario above. And he did just as good a job with his selection as 90% of the electorate, who have absolutely no idea for whom they are voting. So we rely on familiar sounding names, gender, personal stereotypes, and (above all) party affiliation. But since most folks never see a judge, much less an appellate judge, we contentedly go along with this idiocy, so long as the “right folks” have chosen the “right party.” And when feelings get hurt, we close the wounds with campaign contributions. Now, undoubtedly there is some exquisite irony to be found in the squeals of one particular political party now being forced to admit that, due to Texas’ political “identity crisis,” the party imprimatur now has limited voter clout, and indeed, has become a liability in most of the state. The greater irony is that some of the state’s most vociferous “born again” Republicans wouldn’t have spit on one 20 years ago. But that’s another column. A couple of decades ago, it was well-known and accepted that you couldn’t get elected to anything in most parts of the state unless you were a Democrat (with the “John Tower” exception). The fight was always in the primaries, and the victor there usually went on to face token opposition in statewide races. Frequently, the Republican gubernatorial candidate was a joke, either a wealthy rancher whose daddy had given him enough money to run, or a businessman with a chip on his shoulder; or a weirdo who divided his time between campaigning and running the local UFO society. Ahh, the good ol’ predictable days. But, then this upstart cheeky little oil man from But I never could understand why judges had to declare a party. It seemed incongruous with a judge’s role of providing impartial and equal justice, but then I realized it’s just so the Dallas named Bill Clements decided both his chip and his bankbook were big enough to take on the system, and in 1978 shocked the state by becoming the first Republican governor since reconstruction. Things changed after that, and, along with the new arrivals from all over the country, Texas politics would never be the same. Many still long for those simpler times. Yep, most Texans were Democrats. Now, that’s not to say that they were Democrats like Boston Democrats. That’s like saying that 2 professional athletes like Willie Shoemaker and Wilt Chamberlain, are interchangeable: after all, they’re both male, they’re both professional athletes, and they were the best at what they did. Yet, it was unlikely you’d see Willie Shoemaker post up on a fast break at the NBA All-Star game, or “Wilt the Stilt” riding a horse named “Snotty Money” at the Kentucky Derby. Generally, Texas “Democrats” were as about as liberal as lip-service and political reality permitted. But, politicians all knew that to get elected, you darn well better say you’re a Democrat.unknowing voters will look at the party label and figure that the candidate is somehow “approved” by the party. But I always hated that, and found it deceptive at best. Who says the party “approved” this boob? Perhaps I’m hallucinating, but it did seem 20 years ago that our profession did a better job of “policing” potential judicial candidates. Perhaps it was merely the one party system, where only one candidate (usually the better-funded incumbent) survived the primary. But I know many would-be candidates were dissuaded from running by the lack of collegial support from the legal community. But by 1984, and the Reagan landslide, a lot of inexperienced goobers, looking for a paycheck and parking space simply signed up, and were swept into office on generous coattails. If you’re old enough to recall, many of those elected didn’t even campaign, and one Harris County District Judge-elect was out on vacation while our sophisticated electorate demanded she serve. The word was out. Pay your money and spin the wheel. Far too many listened, and the legal profession sat on its hands, content to rely on the dwindling to non-existent influence of bar association polls or newspaper endorsements. Perhaps we don’t need to give these choices any greater dignity. After all, it ain’t brain surgery. That’s how we act. The election of judges still boils down to (in descending order): party affiliation; name recognition(“Oh yeah, I think I know that person”) and lastly, ability. Anyone who claims that anything in excess of about 6.2% of voters actually intended to vote for the candidate based upon his or her reputation or legal skill is in denial. I especially love it when successful judicial candidates, after spending inauspicious careers fixing traffic tickets or filing cookie-cutter pleadings at some state agency devoted to tongue diseases attributes their success to “my position on the issues”[uh, dork, what issues?] or “grass roots campaigning” or “getting my message out class=Section2> to the public.” What insufferable vomit. Please.... Dude, you spent less than a buck-fifty on your campaign. Your own neighbors don’t know you. Even your dog doesn’t come when you call. Do you realize that perennial candidate Gene Kelly, the retired Air Force lawyer who has previously run for numerous judicial races (including beating one of finest San Antonio appellate judges in the democratic primary for Supreme Court), in his most recent race for the US Senate, got millions of votes? Oh sure, you’ll say it’s just to protest Kay Bailey, even though his qualifications read like the nutritional information on a jelly donut. Here’s a test. Which of the following people just ran for the Court of Criminal Appeals--Bill Barr, Bill Vance, Charles Holcomb, Barbara Hervey, Katherine Keller, or Tom Price? See, you don’t know do you? And most likely, you’re a lawyer. All of them ran, except Price and Katherine Keller (it was Sharon Keller who won the presiding judge spot). So imagine how Jane and John Q. Public feel. Here’s a fun idea: On the ballot we should include both candidate’s name, and 3 other names of fictitious candidates and see who wins. And get this. . . they’d all in the “right party”[whatever that may be]. Bwa-ha-hah! We’d be down to who’s name sounds more “judicial.” I mean can you trust a judge named “Lynch”[sorry, Mike] when there are alternatives candidates named “Robert Goodman,” or “Elizabeth Stately” (or, lest we forget, “Don Yarbrough”)? Yikes, what’s an electorate to do? And as for this “democracy” imperative, if you can find me 10 non-lawyers who wouldn’t appreciate a little help with judicial selection, I’ll buy you lunch. Every person I asked begged me to relieve him/her of the burden of choosing the judges down the ballot. I also realize that Republicans will be rightfully complaining that any call for change now, that the votes are coming their way, can be criticized as disingenuous. “Oh sure, just when statewide party affiliations favor us, people want to sanctimoniously change the system! Well, you can blow it out your primary exit poll!” Just remember, the view is always best from the top of the roller coaster, just before it plunges. Now is the time for all of us to exercise grace and integrity, by acknowledging that it was a bad system then, it continues to be a bad system, and we should change it. But how, you ask. It’s a thorny question, but most lawyers support the Appointment/Retention system whereby a qualified committee or commission makes initial appointments, and the appointees stand for a retention election. Are there potential political flaws? Sure. But we require a lot more investigation from folks just to get a law license, or to survey land for that matter. Shouldn’t we require more than a filing fee to be in a position to affect and potentially destroy people’s and families’ lives and fortunes? Of course. I realize these changes would deprive lawyers of those enchanting campaign fundraisers, so there is a “down-side.” Yes, I know, we’ve actually had some very good judges elected through our present accident of politics (and mainly in counties where the legal profession took an active role). And we always hope and pray that unqualified winners will rise to the occasion. But think how many great judges have been passed over and how our society may have suffered because of it. My neighbors don’t want to choose a brain surgeon or a judge without help from those who know. Why don’t we give this process the dignity it deserves? To continue to fantasize that the public knows who they’re electing is the ultimate insult to true democracy. We need reform, we need it now.
|
|
 |
