Saturday, July 04, 2015

Historical lament over habeas limits, partisan election of DAs

Grits was pleased to learn from the newsletter of the Texas Supreme Court Historical Society of the Texas Constitution History blog, a project of Justice Michael Massengale of the First Court of Appeals. Give it a look-see.

Browsing around, I found transcribed a letter from a minority report from a committee in the 1869 constitutional convention, the Reconstruction Convention, which lamented several recommendations not adopted by the convention which their committee had championed, including two which perked up your correspondent's attention: Habeas corpus powers for district judges and appointment instead of election for District Attorneys:
The undersigned would also recommend that special authority be conferred on district judges to grant writs of habeas corpus, as recommended in the majority report.

The minority of the committee agree also with the majority in recommending that the district attorneys shall be appointed by the Supreme Court and commissioned by the Governor.
Texas district judges had enjoyed habeas authority since the inception of the Republic, so this was a big change. Grits has discussed before how, historically, nearly all legislative interventions into habeas corpus reduce judicial power, and this was no exception. (That's part of what makes Texas' junk science writ so remarkable - there are few other examples which I can find of legislatures in any jurisdiction expanding habeas power instead of the courts.) Here we see in 1869 one of the more radical reductions in Texas judges' habeas power - removing it from the hands of the front-line ministers of justice and reserving it for the bigshots in Austin.

For that matter, how different would the criminal justice system be today if District Attorneys were "appointed by the Supreme Court and commissioned by the Governor" instead of popularly elected on a partisan basis? We hear proposals in the modern era regarding appointment vs. election of judges, but appointment of DAs could augur even happier results. Perhaps having Texas DAs appointed by the Supreme Court is a suggestion which needs to be revived?


Anonymous said...

In Travis County, the "real" DA election is the Democratic primary. In Williamson the action is in the Republican primary. These are still contested elections so probably better than what we get from crony appointments.

Today the Austin American Statesman reports: "In Attorney General Ken Paxton’s first weeks in office, he filled his higher ranks with at least 14 people connected to him and other prominent Republicans — quiet “appointments” that his office defends in spite of state law, which requires that jobs be advertised when they’re filled from outside the agency."

Gritsforbreakfast said...

@8:52, in a past life I performed opposition research in numerous contested judicial campaigns, usually primaries but also general elections. So, having seen the judicial election process as up close and personal as one can, I'll rely on my personal observation over your "probably." It's a rare judicial election (unicorns, not zebras) that assesses anything about the candidates remotely related to their ability to wield a gavel, author an opinion, etc..

Anonymous said...

I've been close to elections for District Judge, District Attorney, and County Sheriff as well as close to an excellent attorney that rejected then Gov. Perry's appointment to District Judge because of the condition he switch party affiliation. Considering the "quality" of the rebub that was ultimately appointed instead I am certain that the appointment process is much, much worse for those of us that value justice. ymmv

Gritsforbreakfast said...

I don't know ... Wallace Jefferson, Elsa Alcala ... we've gotten some pretty decent judges in Texas through the appointment process.

Moreover, apparently your friend was offered the chance to serve but chose his ego (party affiliation) over service. I'm not sure that's on the governor, who for political reasons has to appoint Republicans. He gave your guy an opportunity, whose fault is it he didn't take it?

BTW, you're judging by outcomes - do I like the judge appointed/elected? - which is not the right question. The question is, do elections or appointments better vet actual judicial qualifications? Elections don't at all. Voters don't know nor care about any of that stuff. In the appointment process there's a (usually pretty good chance) somebody, somewhere will eventually vet the candidate's record and question whether they're qualified to be a judge. Voters, OTOH, are never in a position to do so, especially under the current partisan election process. Same goes for DAs.

Anonymous said...

Perhaps I am too partisan but I refuse to blame anyone in the Baby Boomer generation for refusing an appointment based on party affiliation. The repubs and their policies have simply been too horrible for too long, ever since realignment.

It is 100% fair for you to say that many criminal defendants got the shaft because that particular Democrat rejected Perry's appointment. Loyalty to party should not trump loyalty to justice. In that sense you are correct, Grits. I don't know if I could, for the sake of the greater good, pretend to be on the other side. Could you?

Gritsforbreakfast said...

"pretend to be on the other side"

I'm not on either "side," so I'm not pretending. I find extreme partisanship to be boring and silly. In Texas, in particular, those labels don't mean much, certainly on the issues I work on.

Accepting an appointment does not require adopting every culture war meme from the religious right. I think your guy made a mistake because he couldn't get past his own ego, and I don't understand why you blame Perry for offering your ally a gig he refused.

Anonymous said...

Your suggestion is that the Democrat should have taken a substantial pay cut, switched parties, and accepted the appointment, as a matter of public service.



But then you go on to imply that Perry should not shoulder the majority of the blame for his failure to appoint his first choice ... since the person was a Democrat and wouldn't switch. It was explicitly Perry's duty and responsibility to fill that vacancy. It was not any particular candidate's duty to accept the nomination. You want us to forgive Perry for not appointing the person that he believed to be the best person for the job, because of political reasons?

Whatever. I don't see political appointments producing better results than elections... and elections produce terrible results. If you really want the best, perhaps let the State Bar ethics committee do the appointments. Or set up some analogy to pardons except replace the board of pardons and paroles with the Bar... The Bar presents a list of qualified candidates and the Governor chooses one of his liking.

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