Are same-sex couples entitled to all the same spousal benefits as heterosexual couples? Can cities regulate the use of plastic bags? How mentally ill is too mentally ill to be executed?
It’s the 18 judges on Texas’ two high courts who answer these critical questions, often drawing praise or ire in the process. But come election season, they struggle to muster any attention at all.
Judicial candidates are subject to strict campaign finance restrictions, making it difficult to get their names out across a state of 28 million. And they must walk a difficult line as they campaign, running as partisans without compromising their judicial impartiality.
That means judicial candidates’ fates often rest with the top of the ticket – which is perhaps why no Democrat has been elected to the Texas Supreme Court or the Texas Court of Criminal Appeals since 1994. This year, five Democrats are vying for six seats on the state’s two high courts, which hear civil and criminal cases, respectively.
These low-information, down-ballot races are rarely competitive, but this year, as El Paso Democrat Beto O’Rourke draws attention to the top of the ticket in an unusually tight campaign for U.S. Senate, Democrats hope their judges can ride his coattails to the state’s highest benches.
Republicans, meanwhile, expect history to repeat itself.
“I do think to a large extent that my success will depend on how the entire ticket of my party goes,” said Texas Supreme Court Justice Jeff Brown, one of three Republican incumbents on the court up for re-election this fall. In that context, he said, he feels confident. “Of course, Beto O’Rourke’s popularity has certainly got Republicans thinking that maybe Texas is getting a little purpler. But I still feel like it’s going to be a Republican sweep.”
If anyone is poised to spoil that sweep, it’s R.K. Sandill, a long-serving Democratic district judge in Harris County who’s consistently outraised his opponent, Justice John Devine. In addition to an impressive cash-on-hand tally, an endorsement from the Houston Chronicle and victories in the Houston Bar Association and Texas Bar Association polls, Sandill faces perhaps the most controversial incumbent on the high court. Before being elected to the high court in 2012, Devine was sued for displaying the Ten Commandments in his courtroom. Devine has also boasted publicly that he was arrested 37 times protesting outside abortion clinics.
But that history may not hurt Devine’s chances, Sandill said in an interview last week.
“It doesn’t matter who the Republican [candidate] is in a statewide office in Texas,” Sandill says, smiling but resigned across the table at a downtown Houston coffee shop. “It’s been 24 years. There’s no vulnerability. We all live and die together on the Democratic ticket.”
For his part, Devine said he has no reason to doubt the hegemony of the state’s longtime majority party at the polls this fall. If anything, he said, national political tailwinds favor Texas’ long-dominant party.
“The Kavanaugh hearings and the mobs coming from South America, and the various other things that give a great concern – one party’s being blamed for all that, and they’re the ones I think are going to suffer the hit for it,” Devine said, forecasting a successful Republican sweep this fall.
The Republican incumbency advantage is also likely to boost the four other Republican incumbents running for the state’s two high courts this year. Supreme Court Justice Jimmy Blacklock, appointed in January by Gov. Greg Abbott, raised eyebrows in Texas legal circles earlier this year when he appeared at an anti-abortion rally. He stood next to the governor as Abbott praised him: “I don’t have to guess or wonder how Justice Blacklock is going to decide cases because of his proven record of fighting for pro-life causes.”
Blacklock, who has said the governor meant to refer only to his “judicial philosophy,” said there are “positives and negatives” to any system of judicial selection, including Texas’ current approach. Current and former justices have been some of the most vocal critics of a system that asks judges to run as partisan cheerleaders but rule as impartial arbiters.
Still, Blacklock said party affiliation gives voters one important indication of a candidate’s leanings in low-information races.
“Voters have a hard time knowing very much about each judicial candidate — there are so many judges on the ballot,” Blacklock said. “Your party identification doesn’t by any means say everything about you, but it does give the others some idea of where you come from. So it’s information that voters have about their judicial candidates in a situation of sparse information.”
Prominent Texas Republicans are calling on supporters to vote straight ticket Republican all the way down to protect conservative judges from a wave of Democratic voters.
“One of their major goals is to defeat our Republican judges,” Lt. Gov. Dan Patrick warned in an email last week. “We can’t let that happen! Principled conservative judges who run fair and honest courts are key to the strength and continued success of Texas. We must keep Republicans on the bench throughout Texas.”
Even if Republicans don’t lose any judicial seats this time around, they’re poised to lose a major electoral advantage in 2020.
2018’s elections are set to be the last to employ straight-ticket voting, which allows voters to automatically cast their ballots for all candidates of one party all at once. Starting in 2020, if voters want to back their party’s full slate of judicial candidates, they’ll have to check those boxes all the way down the ballot. Political observers expect a major drop-off for the races that come all the way at the end.
For the Texas Court of Criminal Appeals, Democrats have fielded only two candidates for three seats. One Republican, Michelle Slaughter, faces no Democratic opponent, though Libertarian Mark Ash is competing for the open seat as well.
Sharon Keller, the criminal court’s longtime presiding judge, faced a tough primary challenge in David Bridges. The state appeals court judge went after Keller for past controversies, including a 2007 incident in which an inmate was executed after his last-minute appeal was filed a few minutes past the 5 p.m deadline. But after winning the Republican primary with 52 percent of the vote, Keller may have less to fear from Democrat Maria T. Jackson.
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Jackson, a district court judge in Houston, has accumulated more money than Keller – albeit in a race where neither cracked $10,000 cash on hand – and won the endorsement of the Dallas Morning News.
Judge Barbara Hervey, who serves on the Court of Criminal Appeals, also faces a Democratic challenger in Ramona Franklin, a criminal district judge in Harris County.
Hervey said she’s found little time to campaign for her fourth six-year term, given her schedule at the court and her additional administrative responsibilities, like co-chairing Texas’ new judicial commission on mental health. She was one of just a few statewide Republican judicial candidates to win a Texas Bar Association poll conducted earlier this year.
“So far so good, I guess,” said Hervey, whose campaign has under $5,000 in the bank – a tiny sum in a state as big as Texas. “I figure it’s more important for me to be at my job than to be running.”