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Texas Judges: Out of Order - Part 3

Texas is one of just six states that select all of its judges in partisan elections.  Critics say that creates conflicts of interest and politics becomes more important than qualifications.  In the third part of “Texas Judges: Out of Order,” we look at the pros and cons of the way Texas selects judges and some alternatives.

"All rise, the 95th District Court of the State of Texas is now in session.  The Honorable Ken Molberg presiding.”

Lawyers snap to attention as Judge Ken Molberg prepares to rule on a motion involving two healthcare companies.  At one point he raises his voice and tells an attorney to stop talking when she interrupts him. Never mind, that the attorney’s law firm contributed generously to Judge Molberg’s reelection campaign.  As it turns out, the opposing law firm in the case donated too.

"It’s not unusual for me given the many years I’ve been in this community as a lawyer before I was a judge to know both sides of that table very, very well and to have had both of them contribute to my campaign,” said Molberg. 

“You just saw a small motion where I got a little testy with one of the lawyers who happened to be one of my largest contributors.  That lawyer didn’t get any slack out there this morning,” he pointed out.

Judge Molberg is a former Dallas County Democratic Party Chair and one of the biggest fundraisers among the county’s civil and criminal judges.  Records show that in the first six months of his reelection campaign Molberg raised more than $175,000 just in case he drew a primary opponent which he didn’t.  And 93% of the contributions came from attorneys and the legal community many of whom appear in his court.

How that’s perceived by the public bothers some of Molberg’s colleagues on the bench including Judge Jim Jordan, whose courtroom is down the hall.  Like Molberg and most Texas judges, Jordan’s campaign contributions also come almost entirely from lawyers.

“Any litigant who comes into the court should leave the court knowing that their case was decided on the law and the facts and not believing that their case was decided because the judge received a contribution from an attorney or one of the parties,” said Jordan. 

“And as hard as we work to make sure we make our decisions based on the rule of law, it’s difficult to fight the perception if we’re taking money from the lawyers and the parties coming into our courts, he said.” 

Money and party politics are the biggest reasons Jordan wants to do away with partisan elections as a way of choosing Texas judges.

“A judge’s robe is black.  It’s not blue or red.  So we need to get our selection off the partisan ballot," said Jordan.

Molberg says attorneys contributing money don’t expect favors; they just want to elect judges who know the law.  And Molberg is adamantly opposed to the so-called retention system used in at least 14 states, where judges are appointed often by the legal community or the governor.  Then, at the end of their terms, voters decide whether to keep the judges or get rid of them.

“The reality is a guy like me does not want a body of 12 lawyers deciding who are going to be the judges out here,” explained Molberg. “I feel a lot more comfortable if the guy who works down at the gas station is in on the deal.  I don’t want the governor just saying this is who your judge is going to be. I think that is very unhealthy.”

“The one fear I’ve always had – was to become isolated,” Molberg said.  “That is particularly prominent in the federal system where you have a lifetime appointment. That’s why I have never abandoned my preference for an elected system.”

A poll conducted in 2002 by Campaigns for People found 59% of Texas voters agree judges should be elected. But they’re bothered by the money. Most said campaign contributions do influence a judge’s decisions.

Contributions to Texas Supreme Court justices created a scandal in 1987 that got national attention with a report on the TV program 60 Minutes.

Texaco had petitioned the Supreme Court to reconsider an $11 billion judgment in favor of Pennzoil.  But judges who had received large donations from Pennzoil lawyers refused to hear the case.

That ignited efforts to reform the way Texas selects judges. 

For years the Supreme Court’s Chief Justice Tom Phillips lobbied the legislature to adopt the appointment-retention system and scrap judicial elections. 

Phillips says his 2003 effort failed because of opposition from campaign consultants and both major political parties.

“In urban areas well over half the ballot is judicial candidates,” said Phillips.  “They bring their friends out to vote and help defer the costs of running the headquarters. They mobilize voter registration and the party just likes having that energy around.”

While reformers lost the war Phillips says they won a few battles. 

Texas now has limits on the amount of money an individual or PAC can give a judge. Judges have to step down from the bench if they want to run for political office.

Judge Jim Jordan would also like to see stronger job requirements. He says a judge right now can be 25 years old and have little courtroom experience.

But few seem to think there’s an appetite in Austin to really overhaul the current system of electing judges. 

For Ken Molberg that’s just fine.

"I really think there’s something very important about making judges touch the community and be out there among the people who elect them,” he said.

How States Choose Judges

Former KERA staffer Shelley Kofler was news director, managing editor and senior reporter. She is an award-winning reporter and television producer who previously served as the Austin bureau chief and legislative reporter for North Texas ABC affiliate WFAA-TV.