The Meaning of America

Authors Note: If you are looking for perfect grammar, punctuation, or spelling, you won’t find it here. I agree with Mark Twain. Never trust a Man who spells a word only one way. I ALSO CAPITALIZE WHEN I FEEL LIKE IT.

 [ALL BLOG POSTS BY ME ARE MY RESPONSIBILITY ALONE. THE COLLEAGUES AND FRIENDS DEPICTED IN THE BANNER, CAN NO MORE CONTROL WHAT I SAY THEN ANYONE ELSE.I THANK THEM FOR ALLOWING ME TO USE THEIR IMAGE.]

AND SO IT BEGINS…

Friends-

I think we can all agree that Party affiliation has no bearing on one’s qualifications to sit on a bench. For years I have supported candidates from both major parties. My support has always been based on qualifications. I don’t give a damn if a candidate is a Republican, Democrat or Whig. If I thought they would be fair and make a good judge I supported them. My support was usually the kiss of death for a judicial campaign. I know how to pick the candidate who will loose.

Thirty years ago, the Democratic Party held sway in Harris County. The vast majority of Criminal Court Judges were Democrats. I am a  liberal Democrat. Some of the Democratic Judges in those days were great men, veterans who had fought in the Big War. They had  life experience, and that gave them wisdom. Wisdom it turns out is a pretty good attribute for a judge. To be fair not all the Democratic Judges were Solomon-like. We certainly had our share of nit-wits and goofs who had  no business sitting on a bench.

Over the years, the Republican Party gained control of Harris County. As the Republican Party gained control of the County, they also gained control of the Criminal Courthouse.

 For the last twenty years the Republicans have controlled the Harris County Criminal Courthouse. This is significant because those who control the Courthouse, control the administration of justice and that effects every damn case in the courthouse. I will address that in other Posts. Lets just say, the Republicans take pride in their law and order bit. There are times that Republican Judicial Candidates sound more like they are running for Sheriff than Judge.

As the Republican’s came to dominate Harris County, the Republican Primary became the only election that counted. Restated, if you won the Republican Primary, you were in like Flint and you were going to be judge. Why was that?

That was because, the Democrats, were so marginalized, they could never beat the Republicans in the General  Elections. The Republicans had fine-tuned the use of straight ticket voting. Party bosses had long lists of blue haired ladies who voted election after election for any and all Republicans.  Qualifications were not relevant. The only qualification  you needed was the Bosses’ endorsement.

If you got the Bosses endorsement, with straight ticket voting you would win the Republican Primary. After that, in the General Election, again with straight ticket voting, if you had that “R” next to your name you were going to be judge. So, the Bosses picked their favorite candidates, sent out their endorsements, and relying on straight ticket voting they created the judiciary as we knew it for 20 plus years.

It is noteworthy, with such a lock on creating the judiciary, the Republican Party Bosses  had every opportunity to create the best possible judiciary.

But, in choosing who to crown the Bosses didn’t always look at criteria, such as ‘Who would be the most fair to both sides in the case’.

With 22 Criminal District Courts and 15 Criminal County Courts, that is a lot of crowning to do. Over a period of time a feudal system developed.

There are three prosecutors assigned to each court. The Judges and the Prosecutors oftentimes treated the court as if it were their private domain. In truth the  Courthouse is paid for by the good citizens so it belongs to all of us. You would not know that by how “all  of us” are treated in some courts.

In each court the Prosecutors and Judges often are  together all day. In each court, there is a senior prosecutor  who  is referred to as  the Chief. The Chief and the sitting judge often become very tight. The kinship between a conservative Republican Judge and a conservative Chief Felony Prosecutor makes sense.

As Republicans took benches and then began to retire, they quite naturally wanted those benches to remain in Republican hands.  

Over the years, Things got so tight that the Chief was often treated as the favorite  son or daughter of the Judge..  What did this mean in terms of who became judge? Following the Feudal model,(which somehow makes sense in the State-Sanctioned Execution Epicenter of the Universe),  the Chief Prosecutor came to inherit the bench. Primogeniture became the standard Republican method for the selection of new judges.

Chief Prosecutors tend to be law and order-oriented. So they fit in very nicely with the Republican agenda for the Criminal Justice system.  In time, we saw Felony Chief after Felony Chief get elected to the bench. With the warm endorsement of the retiring Judge, the changing of the Guard was  often seamless. The Chief Prosecutor, simply changed chairs, put on a robe, and kept the court going on its previous course.  

Too be fair,(I hate that part), Some Felony Chiefs and Former Prosecutors have made fine judges. Likewise, some former Defense Lawyers who were presumed to have some fidelity to the Bill of Rights, have gone insane and been nightmares as judges.  You cannot judge judges by the lot.

But,the systematic placement of  Felony Prosecutors on the Bench has long term effects. It tainted the independence of the bench. It was and is  hard at times to differentiate between who is the prosecutor and who is the judge. Some of the  Prosecutors took the bench and forgot they had a new role. As Judges They kept prosecuting or helping the prosecutor at every turn as if they were still a part of the DA’s office. Or as the Legendary Richard “Racehorse” Haynes once noted, it bothered him when at the beginning of a  trial the Judge asked the Prosecutor, “Are WE Ready?” 

Most of these prosecutors turned judges came to sit on the bench via a combination of the Party Bosses endorsement, the retiring judges pat on the  back and straight ticket voting.

Now, after 20 plus years, the Republicans are loosing control of the County, and the Criminal Courthouse. This is because of the long anticipated arrival of the growing Hispanic vote, which tends to vote Democratic.

So, what now? What now is the Democrats are getting elected via the same straight ticket vote that brought the Republicans to power. This might be one of those live by the sword die by the sword deals.  

Republican State Senators Dan Patrick & Bob Duncan say they want to reform how we elect judges. Now that, the tide has turned and their Party is no longer the sole beneficiary of straight ticket voting, they want to eliminate straight ticket voting. This proposal is touted to give us a better more qualified judiciary. Come on guys, how do you even say that with a straight slate face?

In the alternative, Republican State Senators are  touting the idea of the Governor,(the same guy who cannot remember three things), appointing judges and the voters deciding whether to retain them. Again this is supposed to give us a better more independent judiciary.

The Chronicle has looked at this and they note that Senator Patrick first called for this change several years ago. I am sure that is true. I am equally sure that Senator Patrick could see the writing on the wall when he first made his suggestions that we do away with the straight ticket vote. He is not dumb. Not all Politicians are dumb. All politicians motives are suspect. To ignore it is to ignore human nature.

Of course, partisan politics are very much at play here, and claims to the contrary are hogwash.

The Republican Senators saw and see what is coming. Democratic Judges with Hispanic surnames just won in the last election, while Democratic Judges without Hispanic surnames lost. This is an inexact science, but the Hispanic vote, as anticipated for a number of years has arrived.

  According to the numbers crunchers, the powerful Hispanic mostly Democratic vote is here to stay. The consensus is that in coming elections, with a Hispanic straight ticket vote, Democrats will regain control of Harris County and the judiciary. That is important because that means controlling the criminal justice system. We might actually  finally get a system that is more just than criminal.

By  removing Judges from straight slate voting and moving election of judges to a different day, these Republican leaders are trying  to  diffuse the  swell of  Hispanic Democratic votes.

Casting this as some Born-Again commitment to quality over partisanship in judicial selections is just a bunch of crap. Let us not forget that in even the most recent elections, the same Republican Party that these Senators are part of, engaged in shameful, malicious Partisan attacks on a Democratic judge who didn’t meld well with the Ex-DA Judge Club.

The idea of the governor appointing judges and voters having the retention vote is disingenuous at best. If it were put into effect what would be the  outcome?

Simply put, Republican  Governor “for Life” Rick Perry would appoint Republicans to the Bench. Republicans would maintain control of the judiciary by gubernatorial fiat. The Gubernatorial appointments would neatly negate any new Democratic majority.
The so called “retention vote” is meaningless. As the Republican Senators know, voters currently don’t know the judicial candidates. No judge, no matter how bad, would be tossed by the voters. Proof of this point can be found by looking no further than the recent re-election of Texas Court Of Criminal Appeals Judge Sharon Keller. She embarrassed the entire state and still got reelected.

Voters do not know who they are electing to the bench. A fair, equitable and democratic solution to this long-standing problem needs to be found.
The solution will require the best efforts of those who -truly -care -about -justice.

The Senators Solution is no solution at all.  At best its a clever  gambit  by those in power trying to keep their power.  If implemented it would disenfranchise the coming majority in favor of the few who currently hold sway, and that is wrong.

We need leaders who will implement just solutions. We don’t need leaders who disguise partisan solutions as just.

The only way we will elect judges based on qualifications is if we the people start doing our homework. Democracy is great on paper. But for it to truly work, as envisioned, we the people need to make it our business to get the best candidates to run and educate the voters about them. The solution is that simple and that complex.

James Madison said it best when he said, “ A well-instructed people alone can be  permanently a free people”. We have jeopardized our freedom by being far less than well-instructed.

The selection of judges by straight slate voting is idiotic. But We must keep a sharp eye on the new Republican Politically-motivated quest to do away with straight slate voting. Replacing a  system that allows for idiocy with a system that allows for tyranny is WRONG.

We should fight any suggestion that takes away our vote. Too many have fought and died to pay for our right to vote. We cannot stand idly by while some  politicians try to rob us of our right. We must fight any and all attempts to disenfranchise any or all of us.

Robb Fickman

Criminal Defense Lawyer

Houston, Texas

Aka “The Czar”