Should Judges Be Forced To Campaign?

IF a Texan's dream is to sit on that state's Supreme Court, it's not enough to be an accomplished lawyer or jurist, or even to have good political connections. The aspiring justice also has to be able to raise up to $2 million for the necessary statewide election campaign. And who is most likely to open their wallets for a would-be judge? The very lawyers whose cases will come before that judge for determination.

All appellate and trial judges in Texas must go to the voters for their jobs, and that takes money - much of which is contributed by lawyers.

``Judicial fund-raising leads to the appearance of impropriety, and sometimes it leads to actual corruption in the administration of justice,'' says Jimmy Banks, executive director of Texans for Judicial Election Reform in Austin.

The organization was founded a few years ago by John Hill, a former chief justice of the Texas Supreme Court, who says he observed many campaign-finance abuses during his years on the bench. The group is lobbying for an amendment to the state constitution that would create a merit-selection process for many Texas judgeships.

Citizens' groups and politicians in a number of other states, including Louisiana, New York, and Pennsylvania, also are trying to drum up support for merit selection of all or some state judges. Limited merit-selection procedures were recently adopted in Tennessee and Rhode Island, and a merit-selection measure will be on the ballot in South Carolina this fall. And delegates to the American Bar Association's annual convention in New Orleans this month endorsed a resolution opposing partisan elections of judges.

Merit selection of judges is distinct not only from judicial elections but also from partisan appointive procedures, whereby the nominating official - usually the governor - takes political as well as legal factors into account. (Federal judges are appointed by the president, subject to Senate confirmation, based on political considerations in addition to candidates' qualifications.

Merit-selection procedures are intended to eliminate, or at least significantly reduce, politics in choosing judges. Typically, a nonpartisan or bipartisan commission screens candidates for a judicial seat on strictly professional criteria and then submits several names to the governor, who selects the new judge outright or places one name on the next ballot for approval by voters.

Since its inception during the Progressive era in the early years of this century, the merit-selection concept has made large strides forward, according to Frances Zemans, executive vice president of the American Judicature Society (AJS) in Chicago. Founded in 1913, AJS is the leading advocate of merit selection of judges.

Today, Ms. Zemans reports, in 14 states all judges are selected on merit, and in nine other states some judges are selected on merit (appellate judges, for example). But judges are still elected in many states, and in nine states all judges run for office.

Somewhat ironically, judicial elections - a product of Jacksonian democracy in the 19th century - were themselves a reform measure in reaction to abuses in the appointment of judges. But later reformers have been concerned about partisanship and possible conflicts of interest in judicial elections.

``Merit selection is the best way to ensure independent and qualified judges committed to applying the law,'' Zemans says.

Opponents of merit selection, who remain strong in a number of states, often include politicians who favor a judicial spoils system for party loyalists and, in states like Texas, trial lawyers who gain clout through campaign contributions.

Also, in some states minority groups have opposed merit selection, evidently believing that they would not be proportionately represented in judicial appointments. But Nick Herman, assistant director of the Fund for Modern Courts in New York City, says a 1992 study by his group revealed that merit selection promotes greater diversity in the judiciary.