Justice On Trial: The Callais Case, Aging Judges, And The Future Of Fair Courts With Richard Wilson

Hot Topic Bold Talk | Richard Wilson | Callais Case

Dr. Jackalyn Rainosek and Richard Wilson take a deep dive into two pivotal issues redefining America’s courts: the Supreme Court case Louisiana v. Callais and the growing crisis of aging judges on the federal bench.

They begin with an in-depth look at Callais, a potentially historic challenge to Section 2 of the Voting Rights Act of 1965, one of the most powerful safeguards ever created to protect minority voters from racial discrimination. At stake is whether the Supreme Court will weaken Section 2, a move that could severely limit challenges to racially biased redistricting and embolden states to gerrymander voting districts—a key demand of Donald Trump and other political actors seeking long-term partisan control.

Drawing from recent oral arguments reported by Politico, Rainosek and Wilson unpack the legal reasoning being used to justify restricting the role of race in voting protections, and they warn that such arguments threaten the very heart of representative democracy. They explore how decades of civil rights precedent could be undone by a single ruling and discuss how today’s Supreme Court, with its ideological tilt, may reshape the future of equal access to the ballot box.

The conversation then turns to a different but related concern: the aging of America’s judges and the impact of life tenure on judicial effectiveness and accountability. With insight from Slate’s reporting and the ProPublica 2010 survey, the hosts examine cases like Judge Richard Owen’s decline and the rising number of judges who remain on the bench despite cognitive impairment. They explore why many refuse to retire, what ethical and systemic gaps allow this to continue, and what younger judges are doing to identify and respond to signs of diminished capacity.

Finally, Rainosek and Wilson broaden the lens to discuss judicial selection reform, focusing on Texas’s debate over replacing judicial elections with the Missouri Plan, a merit-based or “assisted selection” process. They unpack the supposed benefits—reducing corruption and uninformed voter decisions—alongside its deep constitutional problems: the loss of accountability, the erosion of checks and balances, and diminished judicial oversight.

Through sharp, thoughtful dialogue, the hosts invite listeners to consider a profound question:

If the courts themselves become politically or cognitively compromised, who will protect the principles of justice, equality, and democracy on which the nation stands?

Questions for Reflection

As you read the articles above, here are some questions to consider:

  • Civil Rights & Voting: How has Section 2 of the Voting Rights Act protected minority voters over the decades, and what could happen if the Supreme Court weakens it in Louisiana v. Callais?
  • Judicial Independence: How does lifetime tenure for federal judges both protect and endanger the fairness of our courts?
  • Aging on the Bench: What happens when judges remain in office despite cognitive decline, and what reforms could ensure accountability?
  • Judicial Selection: What are the pros and cons of the Missouri Plan or merit-based selection, and how does it compare with electing judges directly?
  • Democracy & Accountability: How do these issues—voting rights, judicial aging, and judicial selection—intersect to shape public trust in the courts?

Episode Summary Points:

  • Deep Dive into the Callais Court Case and Voting Rights Act
    • Impact on Section 2: The discussion begins with the Louisiana vs. Callais court case and its potential impact on Section 2 of the Voting Rights Act of 1965.
    • Protecting Minority Votes: Richard Wilson, a lawyer, explains the historical context of the Act in protecting minority votes and expresses concern about potential weakening.
    • Role of the Supreme Court: The conversation highlights the role of Supreme Court Justices John Roberts and Brett Kavanaugh in the upcoming decision and the implications of gerrymandering in states like Texas.
  • The Alarming Reality Of Judicial Lifetime Tenure
    • On the bench for life: Richard takes note of why judges do not have term limits and can serve in the judiciary even if they reach a hundred years old.
    • A real-life example: They delve into the story of Judge Richard Owen as an example of mental decline in older judges to underline the lack of clear policies for removing judges who can no longer function effectively.
    • Addressing judicial lapses: Richard explores how federal courts attempt to manage judges with declining mental acuity, including shifting cases and senior status.
    • A process set in stone: The importance of judicial wisdom is also acknowledged, but the need for a system to assess mental acuity through physical and neurological exams is emphasized.
  • How the Election of Judges Works
    • Partisan vs. Nonpartisan: Richard talks about the election of state judges, focusing on partisan elections in Texas and why 15 other states still prefer nonpartisan elections.
    • The Missouri Plan: Richard presents a hybrid approach involving merit selection and public retention votes, but also offers criticisms regarding its effectiveness in removing politics from judicial appointments.
    • Importance of Local Elections: A strong emphasis was put on the importance of local elections, particularly for judges, and the need for voters to be informed, even if it means voting along party lines in the current political climate.

For Further Reflection

The issues discussed in Podcast 147—from the potential weakening of Section 2 of the Voting Rights Act in Louisiana v. Callais to the growing challenge of aging judges and judicial selection reform—reach to the heart of America’s democratic foundation. These topics remind us that justice is not static; it evolves with the character and conscience of those who interpret the law.

To help listeners and readers explore these themes more deeply, we have included three reference articles that expand on the legal, ethical, and institutional questions raised in this episode. We invite you to read these works and reflect on how the balance between judicial independence, accountability, and equality continues to shape the meaning of justice in our time. 

📚 References

Consider becoming a patron on Patreon. Your support helps us continue to produce in-depth content, bring you crucial insights, and amplify the voices fighting for a truly representative republic. Join our community and help us safeguard the future of American democracy here.

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Justice On Trial: The Callais Case, Aging Judges, And The Future Of Fair Courts With Richard Wilson

I’m so delighted to have my lawyer friend, Richard, with me because he’s the one who has all the knowledge and expertise, but I certainly have some of my own experiences with things that we’re going to talk about. Now this is podcast 147, and we’re really going to be talking about the Callais court case that’s going to have some major impacts, but then we’re going to talk about judges and aging. Richard, I’m delighted to have you here. It’s so good to see you, and thank you for doing this so much for me and for the rest of my audience.

Thank you for having me again.

Legal Precedent That Protected Minority Votes

Thank you. I look forward to it every month because I think people are benefiting. I have a number of questions for you because I want to see if we can cover all the wonderful things that you’ve given me. Listeners, I want to let I have three excellent articles he gave me. A lot of the questions come from those articles, but you will have them available to you as always. You know, I gave you your references. My first question is about Louisiana versus Callais. How would you describe, Richard, the decades of legal precedent in the Civil Rights Act of 1965 that protected minority votes? It really concerns me.

That is something we discussed in much greater detail last month. Obviously, the key issue, and ultimately, since we’re talking about Callais, we’re talking about section two of the Voting Rights Act, is the issue of protection along the lines of race and the preservation of one’s different societal groups, in particular, a race’s ability to have equal representation in the government.

I believe that what has happened in the past, 50-plus years since the Voting Rights Act was passed, has gone a great deal towards correcting, but has not completely changed certain, for lack of better way to put it, biases that have existed for a long period of time and still exist. If you want to call it prejudice, call it prejudice. There have been steps that have been taken. There are things that have been accomplished in particular with Louisiana, for right now at least, with the election of Cleo Fields and that newly drawn district that has been challenged.

Hot Topic Bold Talk | Richard Wilson | Callais Case

You have two African Americans representing the state of Louisiana in the House of Representatives of Washington, DC. I don’t think I’m the only person who believes that, without the Voting Rights Act, that number would be 1 or 0, depending upon how the people who decide those congressional districts might choose to crack, in particular, Orleans Parish, which is a concentrated area of minority votes in the state of Louisiana.

I think you’re making excellent points, and my concern is that I was in college during the Civil Rights Act and its passage. What I’m seeing is we’re going backward in this country. Minority voting is a way that people who are taking these state districts and gerrymandering them to allow more Republican representation are very much denying the aspect of race. I think minorities based on race are extremely important.

I’m looking at the gerrymandering that’s been done in Texas, one in North Carolina, or the one in Missouri. They’re all dreadful ways to make a white nomination in representation rather than a representation of the voters in a state. I don’t know what you want to say about that, but that’s where I am with it. My concern for Section 2, the Civil Rights Act, not be weakened by the Supreme Court.

Ultimately, for the time being, because there has been no decision on Callais, it was just re-argued, not two weeks ago. What we’re facing right now is a circumstance where the Voting Rights Act, as you and I discussed last month, is still in effect. If you remember, at the end of our conversation last month, I presumptively told you that I thought that the court would stack a certain way in one direction and the other, and that, in my opinion, ultimately, how the weather section two stands.

What is left of it is going to depend upon justices John Roberts and Brett Kavanaugh. I must say that since it was argued and, in hindsight, with the oral arguments having taken place, apparently, a lot of people who get paid a lot of money for doing this have come down the same way as I did with my not quite wild ass guess for you last month. In particular, a lot of people are thinking that it’s going to come down to what Brett Kavanaugh decides to do.

Those questions that were asked by certain of the justices, in particular. John Roberts seemed to suggest to some people that, try as read the tea leaves, he might be looking for some way that race would continue as a factor, but could no longer be a predominant factor in drawing up legislative districts. One of the particular questions Kavanaugh asked that people seem to be hung up on is whether or not there should be an expiration date on statutes like this that were passed to attempt to rectify the wrongs of our historical past.

In regard to that question, I would say that the point made by the person arguing in favor of the Voting Rights Act, I think, was appropriate and is very important. What she mentioned to the court was that, since Reconstruction ended post-Civil War, Louisiana still has not yet elected an African-American to a statewide office. To the extent, you want to look at an expiration date, I think that would be a good example for why. If the Voting Rights Act has a sell-by date, we’re not there yet.

[bctt tweet=”Since Reconstruction ended post-Civil War, Louisiana has still not yet elected an African-American to a statewide office.” via=”no”]

I don’t think we are at all because I’ve spent 50 years of my life trying to work with people appreciating difference, looking at culture, looking at all kinds of categories to be certain that we accept and learn about people so that we can understand things. I think we’re going in a direction that I haven’t seen in years. It was pre-Civil Rights that I’m seeing the things that are going on now.

One of the things that disturbed me is that I haven’t put in some of our notes for each other, but it’s disturbing to me that we’re going to open up immigration to 7,000 more South Africans, South Africans, Whites, but we’re not going to open up to other things. I think what we’re seeing is that I’m reading articles where the N word is beginning to be used. There are lots of things that are very demeaning to various races that are now coming out.

What Happens If Race Is No Longer A Predominant Factor

For me, I’m hoping Kavanaugh somewhere in his heart of hearts realizes that we have not advanced to the stage where we truly have a socially just rural country that we live in that treats people no matter what their race is, that they are treated with respect. That’s my concern. One of the things you mentioned just briefly about the argument to justify, to justify keeping Section two in and keeping it there. Can you give me any more information about how there is support for doing that? I liked your comment, but I’d like some more if you have it.

To me, in large part, because again, ultimately, I don’t think section two will be completely done away with, because if it’s completely done away with, you could see the return of things like poll taxes or voter registration tests. Some of the really asinine things that were done to keep segments of the population from voting. I think even the most conservative jurists on the US Supreme Court realize that that’s a bridge too far.

I think that the direction we’re going, if a change is made, like I said, is going to be something where race can no longer be a predominant factor. Again, these terms are arbitrary. Quite often, it’s the old Potter Stewart line on pornography. It’s been oft criticized. I know it when I see it. It cannot be a predominant factor that perhaps Roberts is going to try to massage it so that race can or should be considered, but cannot be a predominant factor.

What I mean by that, and presumably what the court means, is when we look at the Alabama case, Shelby, when we look at Callais, there was this decision that, because two-thirds of the state population is African-American, two-thirds of the districts need to be African-American. That is making race a predominant factor. The concern is, if you don’t look at it in that regard, then how much wiggle room is being given?

You asked about this. The comment made by, I think it was Justice Sotomayor, is whether you strike it down or you lessen the consideration given to race. It’s of the same effect. Section two of the Voting Rights Act goes away. I think this ties to, and again, I’m not going to disappear down the rabbit hole with you on this one. Again, I’m simply going to touch on it briefly is the ability to draw the districts.

If race can no longer be the predominant factor, but is a factor, the concern is in States like Louisiana, maybe you have one district, maybe Orleans Parish is African-American, and that’s it. In States like Texas, you’ll have a handful of districts, maybe urban Dallas, urban Houston, perhaps East Austin, certain areas where you’ve got a tight geographic concentration of a minority group. The end result is in a state like Texas, where you have over 30 congressional seats, you’re talking about 3, 4, 5. I think that’s the concern.

You asked about the particular indicators. I would go back to what Sotomayor just as Sotomayor said, “Look, if you start taking any of the air out of the balloon on this, if you make it any weaker, you’re essentially doing away with it.” You’re giving the people who draw the congressional districts an excuse to do it differently and to really minimize, if not eliminate, the consideration of race in drawing these districts.

That’s one of my concerns is that I see Texas already having been gerrymandered. I’m seeing the other states and how they’ve gerrymandered them. We mentioned all those kinds of things. It would take a number of Latinos in these various districts could even overcome this. Now I’m hoping that there are some Republicans who are not megas that would say, “I don’t like this redistricting and I don’t support gerrymandering. I don’t know what’s going to happen.”

I apologize for interrupting, but it cuts both ways. If you do away with this, what’s to keep say a state from Illinois, which is heavily democratic from suddenly taking farming counties in Southern Illinois and drawing them into a long district that takes in the South side of Chicago or in California taking large portions of the rural agrarian Central Valley that are 70%, or 75% Anglo and tying those into districts that have a heavy Latino population. It’s getting more this way every day because, despite the growth of this country is coming in what used to be referred to as minority populations. The reality is, I don’t know that we have any one segment of the population that now makes up over 50%. Maybe I’m wrong. I’m a lawyer.

You’re correct because I’ve looked at it. What I think is that we’re talking about is what the implications are for our country if they do something to weaken Section Two. I think we’ve covered what it is. When I see people trying to take away the right for people to vote and have representation in Congress, then I cannot support that. My highest order of value that I have is social justice. I do not think I see that as a socially just process.

I’m going to be very interested in Callais, and I truly am hoping that if Roberts can convince Kavanaugh and they can come to a reasonable way, then I won’t be as disturbed. I’m hoping Roberts and Kavanaugh can come to something that makes it reasonable and that we can still have one of the most important sections, I think, of the Civil Rights Act. If you want to say anything more about this, it’s great, but I know we’ve got a bunch of other topics that we’re going to cover.

No, I think that about covers it, and perhaps this is a good opportunity to move on to something that I’ve touched upon previously, in particular with the lifetime appointment of United States Supreme Court justices, and talk a little bit about judicial selection if that works okay.

A Look Into The Life Of Judge Richard Owen

I think it’s very important. The articles you gave me were fascinating. I had no idea that we had judges who were in their ‘90s, and we have the one who’s 100. I think there are lots of things that you can provide us. I’m going to go through and ask you some more questions, because I think it’ll help direct our conversation. My first one is that there’s an interesting story in one of the articles about Richard Owen. Would you please describe what has happened with him and what causes us to need to look at whether age really impacts the ability of judges to hold their positions?

Let me start answering the back end of your question by saying something to you that my father once said to me as a small-town lawyer when I chose to pursue this as a profession against his advice. That is that judges are people too. Just like I’m sure we all know someone who has struggled with dementia or Alzheimer’s. The same thing happens to judges. Just because they’re given an important position does not mean that they cease to be human.

[bctt tweet=”Just because judges are given an important position does not mean they cease to be human.” via=”no”]

I think that’s true. Can you tell just a little bit of the story of Judge Richard Owen? I think it gives an example, and then I’ll go into some others as well, because I think they’re so important.

One of the articles you touched upon, the article in Slate. That was written, I want to say, 14 or 15 years ago. This is not something that is new. By something, I mean the aging federal judiciary in the United States. Judge Owen was a highly respected judge in the federal courts in the Southern District of New York. Just to make it simple, New York City. What began happening as Judge Owen got up in years is that there were what I would characterize as these little lapses that are recounted in that article in Slate, but also that really became matters of public discussion 15 to 20 years ago.

A month after trying an important securities fraud case that hinged on a single email that had been sent. Judge Owen asked one of his clerks what email was. There was another circumstance where on a crime, the metaphor that the US attorney used about one of the defendants was that he was the key to this operation, and Judge Owen took the word key literally. Those are some specific examples that are recounted in the article, but others have stacked up.

Basically, what it came down to is Judge Owen, as happens with people when they reach their late 70s and early 80s, his mental acuity, despite his brilliance in his younger and middle years, had reached the point subjectively where he was declining. The problem is with federal judges. They have a lifetime appointment. The Constitution doesn’t say that they serve for a lifetime. It says they shall hold their office during good behavior.

Articles written back then about the Constitution and the meaning of that phrase. In particular, one written by Alexander Hamilton mentioned that the whole idea behind this was that judges would have a lifetime appointment. What has happened, of course, as medical science has advanced, it used to be that this was less of an issue because with many people, our bodies gave out before our minds did.

As medical science has advanced, you have, as you pointed out, an increasing age in the judiciary. There was a ProPublica report done fifteen years ago. In that report, they pointed out that 12% of the nation’s 1200 federal judges sitting on the bench at the district level and at the court of appeals level were 80 years of age or older. Of 1200 judges, 12% were talking about roughly 140 to 150 over the age of 80 or older. As you pointed out, there was one from Kansas back at that time that was over 100.

There have been samples like Judge Owen. There was a judge, I want to say, with the DC Circuit Court of Appeals that handles all of the patent cases, where she was removed from panels hearing cases, and it was a similar circumstance. She did not want to retire or remove herself from the bench, but there were concerns expressed by other judges and people who argued in front of her about whether or not that particular judge’s mental acuity was declining.

The Alarming Reality Of Lifetime Judicial Tenure

Let me interrupt you here just for a moment and ask you to do something. Something that I certainly was not as aware of until I read your articles and talked with you about it. I think the problem is people, I know you’ve got your light. It’s okay. People do not understand that there is they do have a lifetime tenure. There’s a good reason for them having it. We can go in just a moment.

What I’d like to say is, what are the issues with them having a lifetime tenure? What I see is that there’s no policy or procedure clearly about how to remove someone who cannot function. I’d love you to talk about what the problems are with it and what happens, and you can tell any of the stories you want or anything, because I thought there were some fascinating stories about what is happening. After all, we just don’t have a clear policy.

The whole idea behind the lifetime tenure was that because the judiciary branch was not drawn up in the Constitution did not have the army behind it. There was no real military or enforcement mechanism. The idea was that there’s not a risk of giving them a lifetime appointment like you might have with an executive, someone like the president. The benefit of giving a judge a lifetime appointment was that they were not subject to political pressure, and they were going to make decisions on the way that the law should operate, not based on popular opinion.

The problem with that is when judges begin to have issues with their health, but don’t leave the bench. The problem is with this constitutional basis for the lifetime appointment. Unfortunately, there’s no statute, there is no law in place to regulate the mental acuity of our federal judges. Again, this is at the federal level, the US government level. There’s no way of requiring that the judges undergo regular or periodic mental examinations focused on measuring their ability to process information, their mental sharpness.

[bctt tweet=”There is no statute or law in place to regulate the mental acuity of federal judges. They are not required to undergo regular or periodic mental examinations to measure their ability to process.” via=”no”]

There are examples of judges who, when they were on the bench or when they had a position as a chief or administrative judge in an area undertaking to do that type of thing, forced judges to undergo mental examinations to determine whether or not they should still be on the bench. The example given is Judge Easterbrook out of the Seventh Circuit in Chicago that who was very diligent about that.

There are examples of older judges who will voluntarily do it because they’re concerned about the effect on the judiciary as a whole if they begin to slip. That’s great, but the problem is these are voluntary measures, voluntary steps being taken by individual judges. The sad story in that Slate article, or I consider it rather sad, is a shining star on the Federal Circuit Court of Appeals, Karen Williams, that realized in her 50s that she was dealing with early onset Alzheimer’s, and she voluntarily made a decision, or decided to retire because she was concerned about how it might affect the court and how the court she was sitting on was perceived.

The problem we have is that without some regulation, some standards, some requirement in place, you’re ultimately left with this hodgepodge or patchwork system. I can tell you that in Houston, where I’ve tried cases to the federal bench, one of the best judges I ever had the opportunity to try a case in front of, Ewing Werlein, was in his 80s, and he was phenomenal. There is another judge, I will not mention, whom I tried a case in front of that judge and I could say it was probably the worst experience I have ever had.

There were concerns that I had about whether or not that judge, I apologize for the metaphor, was losing his softball. The thing I heard through the grapevine after the fact was that a decision was being made, and cases were being pulled from the second judge I’m mentioning. Again, this was a subjective decision that was being made internally at the district court level, but really to try to, I would say, avoid embarrassment.

If you had some public vetting or some public disclosure or some public means of determining that yes, this judge had a mental problem. Yes, this judge was suffering from an advanced grade of Alzheimer’s or dementia. The problem is that you have multiple cases where plea deals or trials might have happened in front of the judge that are going to be subject to challenge. I hate to say it, but again, I’ll go back to it, judges are people too.

I think sometimes the decisions that are made with respect to judges who start to lose their fastball are a lot of these decisions that get made behind closed doors to really try and protect the appearance of the judicial branch, more so than the reality of whether or not justice is being done in every circumstance.

How Judges Reallocate Or Shift Cases

You’ve really put together a number of statements that show me what my concern is about, and I think the judiciary right now is probably the strongest branch we have because things are functioning. Now we’ll see what the Supreme Court does. One of the things, Richard, that really shocked me is how common these lapses are.

Now I’m not presuming that any judge is not a human being because I have worked in mediation for years, and I have a lot of friends who are judges or that are lawyers who try cases and things like that. I think one of the things about your article that I thought was so powerful was to look at the question they had in it, and I’d like to share that briefly with our listeners. How common are such relapses?

One answer comes from an experiment by the Ninth Circuit in 2001. The appeals court set up a confidential helpline for judges, expecting most calls to be about depression or addiction. Instead, the overwhelming majority have come from judges concerned that elderly colleagues were showing signs of slipping.

The consultant of this said he received calls about 6 to 8 judges within the circuit whose mental acuity or change in temperament, or other changes in behavior, were troubling. We have something here, and I believe something. Any of the lawyers or judges I’ve worked with in mediation and family court and so forth, I believe, want to do the best job they can.

I also know that trying to protect has led to some things that they are doing now to try to do something about it. What I’d love for you to do is talk about the ways that they shift cases so that my listeners can understand how some judges are really trying to protect the people that come before them. Could you describe some of the things that happen to change how much a judge is going to participate?

I guess the benefit of a lifetime appointment is that if you live to be 100, you can serve as a judge until you’re 100. If you feel like you would be bored sitting at home watching TV all day or out in the garden tending to your roses and your petunias, then perhaps it is a subjective decision of the judge doing this so that they don’t become bored. Now, with regards to the reallocating or shifting of cases, it’s something the federal courts have had for a long time, that when a judge reaches a certain age, you can take what’s called senior status, and you don’t officially retire.

What happens is that when you take senior status, you can choose to receive no cases, or you can take on a full docket. Quite often, when we’re talking about some of the older jurists, because with the one example aside, the issues with slowing down or not grasping a lot of complex or new concepts are going to be more pronounced or more common as we get older.

What happens is that when judges take senior status, they can choose to take fewer cases on their own or about the administration of a particular district, say the Southern District of Texas, where you and I live, administratively, the decision can be made to give a lesser workload to some of the judges who have taken senior status.

The benefit of having those judges on senior status who will still listen to and hear cases is that you have a large influx of cases. Justice works better when the judge’s dockets, meaning the number of cases they’re dealing with, are at the right size, meaning they have work to keep them busy, but they don’t have so many cases that you’re waiting 4 to 5 years to go to trial.

The benefit of having judges on senior status is just that. If you’ve got a judge who’s willing to take more cases and wants to take more cases, then the district can allocate cases to that judge on senior status to try to keep the dockets of the current judges. The younger judges who are still full-time and are not in senior status with a more manageable docket. Again, it’s something that can be done.

It is an option that is available if a judge gets concerned about one of his or her colleagues, where you simply stop sending new cases. It’s not that you pull cases, but that you no longer send new cases to that judge. They’ve still got some work to keep them busy. Hopefully, it’s not so overwhelming as to increase the chance of mental lapses. By working at a more manageable level, perhaps there are fewer triggers or circumstances where something is likely to happen.

One of the things that I read about, and I thought was helpful, is that they can decide that a judge can review cases and make decisions, but they don’t have any presentation for them. Some cases are primarily decided on by the dockets themselves with no presentation. That was one of the other things that I noted was a possibility for a senior judge. They could also do that.

Working At The Texas Court of Criminal Appeals

I don’t know what happens if they don’t have mental acuity, because that’s going to be the big issue. My question to you is, I’d like you to go more into it because I think we’ve covered some of these things. By the way, I want to say something. Many years ago, when I was in school, I had a job with the Supreme Court. The criminal court, the criminal part of the Texas Supreme Court. I don’t know what the name is. I cannot remember it.

It’s the Texas Court of Criminal Appeals.

Thank you. We had a judge, which I’m not going to give a name, but had a severe addiction to alcohol. I happened to work for him. There were some real concerns I had because there was a case coming up that I knew needed a full court to decide on this individual, because he was about a specific person.

I remember the case very well because we had guards in the capital area and all kinds of things because of all the conflict that was going on about this case. He came in, and we all knew that he was drunk as could be. He went on the bench. They didn’t say much, thank God, but he’s one of those who had to decide on what was going to happen to this individual. I was his administrative associate.

The clerk and I were horrified. We started talking to the other judges, and we said, “This is what’s happening. You have to understand this, and we’re asking you to look at something.” Amazingly enough, there were decisions made in that case by the judges themselves. I saw times that the clerk was deciding a case that was one that was not going to be presented before the court, he made the decision and wrote the decision because he was incapable of doing it. That is a perfect example.

That’s particularly with the district court level, where there are trials. You have the presentation in the hearing of evidence and a decision being made either by the jury or, quite often, if the case is being tried to the judge. There are some issues that must be brought to the judge. They’re the fact finder. No, the Court of Criminal Appeals, the one about which you were speaking, is not a trial court.

It is what is called an appellate court. Within the courts of appeal, the only thing that they hear, they don’t retry the cases here in the United States. A record is given to them. Everything is on the page. It is in writing. They make decisions based on the law. Does the law permit this decision? It’s not a circumstance where their objective is to relitigate.

In relation to what you’re talking about, I know with the Fifth Circuit, there was one particular judge, I forget who it is, who’s based here in Houston. The oral arguments are at the Wisdom Courthouse in New Orleans, but certain Fifth Circuit oral arguments are held here in Houston because this is a judge who still has snap. The concerns, though, with the judge’s age have to do with travel to hear oral arguments in another courtroom.

Similarly, you’ll have some circumstances where the judge will be a member of a three-judge panel, and they provide their input and they provide their vote, but quite often they’re not writing the opinion. They might be providing some insight or offering some editorial advice to the ultimate opinion being written by one of the other two judges on that three-judge panel, but they’re not doing the lion’s share of the opinion writing, the authoring of those opinions.

The Positive Side Of Lifetime Judicial Tenure

I want to be sure and say that I think there is a clear distinction between state judges and the pen, and how a lot of them are elected. There’s also a difference in federal judges, and we’re talking more about them in this article I gave you, and so forth. I think even on the appellate level, we have individuals that are not able to function, and we still don’t have guardrails or, as you describe, ways to clearly state what is needed when a judge becomes unable to do that. There’s another side of this, though, that I’d like to talk about.

I think there are judges you’ve mentioned who have tremendous wisdom. They have wisdom far beyond what other people have had. They understand the principles, and they may not be quite as quick, but they have the mental ability to really be a resource to the court that they’re serving on. I’d like us to talk about the purpose of federal judges having a lifetime tenure. Let’s look at and see what the reasons are that we would want to have some of these stay on. I want to be sure we cover every aspect of this.

Being a judge, again, there are people too. Like any other judge or like any other job, the more experience you have, arguably, the better you get. There is a benefit to that. There were arguments going on in the late eighteenth century when the Constitution was being written, after the Articles of Confederation had failed. Do we really want to give the federal judges lifetime appointments?

[bctt tweet=”The more experience you have, the better you get at your job.” via=”no”]

Again, going back to Alexander Hamilton, he argued in favor of it, but in response to concerns that were expressed even then over 200 years ago about judges aging on the bench and reaching a point where they would be unable to do their jobs, Hamilton’s response was, “That’s not really a concern.” Of course, back then, the average age of the American male was somewhere in the 40s, not somewhere in the late 70s. Now, the benefit of being an older judge, and again, who doesn’t have the impediments, who doesn’t have these issues, is you bring that bench, the training you have over the years, to a circumstance.

The other thing you have is, again, you may have multiple judges on a floor, and if you’ve got a judge down the hall that has dealt with a particular issue before, they are a resource to help with questions like this, to maybe point the judge in the direction of a particular issue or case that was decided by them years ago.

I wanted to be sure we covered that. I’m not going to say my age here, but there are things I’m doing now that I’ve done better than I ever have in a lifetime. I’m at the age that when I do my work, it is so different from anything I could possibly have done in the past because I’ve had so many experiences.

The thing that I come to is I wish there was a way not to talk about age, but talk about mental acuity, and then ask that there be some requirement to have a physical exam. Not only that. A neurological exam so that we could then determine if there are difficulties and how we can treat those individuals with respect.

Different Ways Of Holding Election Of Judges

How do we help them to understand? How can they still contribute, but at some point, they may not be able to continue? That would be my real desire. Now, we have another topic that I think is so important, and that is about the election of judges. I know the Missouri plan is not one that I’m completely in favor of. I think it’s failed several times. You gave me some articles on it. Also, I think it’s time that we move.

You describe generally how state judges are being chosen, and not only that, specifically in Texas, because you and I both live in Texas, so we can talk about this because there’s a lot of questioning that’s going on right now. I think the questioning is because there are so many Democratic voters in this state that Republicans are concerned, and so they want to change something. Talk to me about the election of judges, and you can do it in Texas, and then the Missouri plan, and we’ll go into more detail on that.

I won’t say there are as many ways as there are states, but there is certainly more than one way of going about electing judges. Here in Texas, where we are, the elections are characterized as partisan elections of judges. What I mean by that, at least here in Texas, we’re one of at this time, only eight states that still hold the partisan election of our judges. It’s Texas, New Mexico, Louisiana, Alabama, North Carolina, and then Pennsylvania, Ohio, and Illinois.

Bipartisan election here in Texas, at least, you have primaries where a candidate is selected by the Republican Party and the Democratic Party. Those candidates, the ones that when the primaries go on the ballot and when they’re listed on the ballot, there’s a designation of them as the Republican candidate and the Democratic candidate. Occasionally, we will have Libertarian candidates as well. Bipartisan election, that’s what I mean.

The one wrinkle we have in Texas is that I don’t believe at the judicial level, you can straight-ticket vote anymore. That if you just select a vote for all of the Democrats or all of the Republicans, that runs all the way down to the district court level with the selection of judges. Still, I could go to whatever ballot page the judge is listed on. I’m going to know by simply reading next to the judges, whether they are a Democrat or a Republican, because that will be listed on the ballot.

That’s what I mean by partisan elections. In Texas, party candidates are selected by a primary election. In other states, it can be different. In Louisiana, the party affiliation is listed on the ballot, but Louisiana has what’s called a jungle primary. The two people who make a runoff could very well both be Democrats or both be Republicans.

I want to say in Pennsylvania, you actually have the parties that will select the judicial candidates, and then the candidates that are selected by the parties then go on the ballot and are voted on with their party designation on the ballot. That’s what we mean by partisan elections is focusing on the ballot that you’re going to see in November during the general election. You can know what party a judge belongs to by simply reading the letter next to their name. Is it a D or is it an R?

Why 15 States Choose To Hold Nonpartisan Elections

Since we’re in the election process for judges, I think it would be good to go ahead and cover that. I want to talk a little bit about the nonpartisan election because it happens in fifteen states, and I didn’t look up all the states, but I know that it happens in fifteen of them. One of the reasons that they thought this would be helpful is if you don’t know the parties of the individuals, judges, then you would have to study more about what was happening.

My sadness is that I see there are loads of people who don’t take the time to even study those individuals. It’s dangerous because I think we have to accept something. In Texas, if you’re going to vote straight party, then you have to go ahead and stick with your party, or we’re going to have some judges elected because somebody didn’t mark their ballot for a specific judge. I think there are problems with it.

Nonpartisan, you’re supposed to study more. Now I know something. In Texas, we have the opportunity for the League of Women Voters. We have all kinds of presentations of things about who they’re encouraging us to vote for, based on parties or whatever else. I don’t understand how they think that nonpartisan elections are going to improve because I know something every state is going to put out whose person the party is. What’s the reason they would choose nonpartisan elections?

The simple idea behind nonpartisan elections is, as you mentioned, if we don’t know of someone’s party affiliation, we’re going to vote on the judges based upon their merits, not their party affiliation. The breakdown of this simple idea is that with elections and with judicial campaigning, it’s pretty easy to realize who your party’s candidate is.

[bctt tweet=”Nonpartisan elections work because voters support candidates based on their merits, not their party affiliation.” via=”no”]

On a statewide level, where people are paying enough attention, the fact that the election is nonpartisan really is not going to matter that much. The example I would give to that is the recent Wisconsin Supreme Court race. If I recall the numbers correctly, over a hundred million dollars was spent fighting over one place on the Wisconsin Supreme Court. I think that if you look at the data, I believe that Wisconsin holds nonpartisan judicial elections, but everyone across the country knew that Susan Crawford was the Democrat running for that seat on the Wisconsin Supreme Court.

You had big money going in behind Susan Crawford. I don’t mean large donations from a dollar value standpoint. Hers was more grassroots fundraising, but then you did have people like Elon Musk throwing a lot of money behind the Republican candidate running in that race. The idea is that by eliminating the party affiliation, you focus more on the merits. The reality is, it doesn’t always work that way.

Why The Missouri Plan Is The Way To Go

I think that’s true. One of the things I was going to say is that I want us to get into Missouri, and I’m watching our time, too. There’s a hybrid. It’s when the legislature appoints the judges in a state. I would like to go to the Missouri plan because Texas is supposed to consider the Missouri plan. I don’t think it’s healthy. I know the Missouri plan is based on married selection and assisted selection. I’m going to say if you’re a little darker, don’t worry about it.

I cannot get the light to stay on. This is the failing of my office.

What I’d like for you to do, though, is talk about married selection and assisted selection. I really feel uncomfortable with Texas ever choosing this. Talk about it and then make any comments that you need to make about the Missouri plan because it has failed many times.

Let me save this, and I should have started with this because I used to think that the Missouri plan would be the way to go. As I’ve grown older, what I’ve realized is that there’s no perfect way of selecting judges. One of the issues you run into with this Missouri plan is that the idea is that you have merit selection. In particular, focusing on urban communities like St. Louis or Kansas City.

The idea behind merit selection is that you have a panel of attorneys or educated people who will get together and, quite often, they will interview the candidates for the judicial office, and a determination will be made on particular candidates who are qualified. With merit selection, the way it works is that an individual under the Missouri plan would then be appointed to the bench. The Missouri plan preserves, depending on whether you’re in a rural or an urban judicial district or judicial circuit.

The idea is you have this merit-based selection from a nonpartisan committee, and then after the judge has spent a year in office, the public gets to vote on whether or not the judge is or is not qualified. If the public vote is that the judge is not qualified, what then happens is the judge loses the seat and he or she will lose the seat. It goes back up for a merit selection again. The problem with this is the concept of a nonpartisan committee to decide these issues.

There are multiple criticisms about it. One would be that, if we’ve got the public selecting three people on the committee, and we’ve got the local bar association selecting three people on the committee, and we’ve got the governor selecting three people on the committee. Is it truly nonpartisan? Do you have large law firms in cities like Saint Louis and Kansas City that are largely controlling the bar association slate of candidates?

Are the three people being appointed by the governor, are they all within the governor’s political party? Ultimately, the issue becomes one where quite often the appointments are not truly based on merit, but based more so on backroom conversations about who the governor would prefer to have in this seat or who a particular large law firm would prefer to see in this seat.

The reality is that when you go to a selection of judges based upon a smaller group of educated professionals, the idea is that it will work better because you’re taking the politics out of it. The reality is that it doesn’t always work that way. I’m going to go back, and from a historical standpoint, I grew up in a small town, and every 4 to 6 years, probably the most important election on the ballot for us in that small town, and our small ballot that was two pages long was who was running for district court judge. It was important.

In a smaller community where you have 5,000, 10,000 voters, people know whether the judge is good or bad. I would say the same is true in rural communities in Missouri, in Texas, in California, pick a state. The judge has a more important position in the rural communities. You really have, I would say, more educated decisions being made in the smaller counties in Texas. The problem you get into with voting in Harris County, at least, and I run into the same problem.

In 2024, I want to say that there were 40 to 50 seats up for election on civil district courts and criminal district courts and family district courts and criminal county courts at law and civil county courts of law, and probate courts. The problem you run into is that I’m not a criminal lawyer. I’m not going to be in the criminal courthouse, and I’m not going to know enough about the district court judges or the county court of law judges trying criminal cases.

I’m going to have a small subset of judges, the 10 or 15 civil district court judges that are running, judges in the first or fourteenth courts of appeal that are running, that I can make an educated decision upon. I will take in the educated decisions and opinions offered by colleagues of mine with respect to particular judges in the family courts, in criminal courts, to make my decisions.

The average election, if there are 40 seats up to be vote on amongst the judges in Harris County, there are maybe ten where I don’t know enough to make an educated decision. What I do, Jackalyn, is rather than making the wrong decision, there will be ten judicial races, even your election, 24, 26, 28, that I’m probably not even going to vote on. I don’t know enough to give an educated vote.

The articles I sent you, the information I sent you, I don’t think there’s really a focus on that. Having grown up in a small community and having practiced law for the past 30 years in Houston, I really think there’s a distinction to be made for once, not based on political parties and not based on race, but honestly based upon urban and rural. There’s a lot less work required to know whether or not you’ve got a good judge in Crockett, Texas, than there is to know whether or not you’ve got 40 good judges in Houston, Texas.

One of the things I want to say is that when the women’s rights movement happened several years ago, a bunch of us formed a group. We have men and women together. What we do is we spend a lot of time with illegal women voters. We spend a lot of time looking and asking lawyers about what they think about the various elections. We try to do our best. One of the things that I want to mention is that in my 146, I have Heather Cox Richardson talking.

At the present time, we cannot afford not to go ahead and vote for those ten judges, even though it may be based on party. What she’s talking about is that every Republican goes in and they’re going to vote on every judge, whether they know them or not. In the current situation we’re in, we’re going to have to vote on those ten.

Now, I’ll admit, I’m glad we have a sample ballot because then I go through all the handouts I’ve gotten from my group, and I go through everything that I possibly can and read, and then we meet and we discuss these things so that they can help each other make good decisions. I spend a lot of time calling my friends who are lawyers, saying, “What do you think about this? Who is it?” I don’t just call Democrats. I call some of my Republican friends and say, “What do you know about these people?”

I know something that some of us who are Democrats decided to vote for the Republican judge in a position because we knew that our Democratic candidate was not acceptable. I think a lot of people do not do that. I think what we need to realize is, if nothing else, as Heather Cox Richardson says, with the current environment we have, our local elections are very important.

Episode Wrap-Up And Closing Words

We need to go ahead and vote by party if we’re Democrats, because the Republicans are going to do that. It is a pattern of theirs. What I want to do is I want to say first, Richard. I’ve learned so much in just having these interviews with you, and I’m extremely grateful. I am very thankful for the research you do and all the things.

I think your talent is that you have such a respectful and clear way to describe to someone like me or the audience that I have that maybe don’t know as much about the election of judges and so forth, that you’ve done a great job to share that with us. I want to thank you, and I’m looking forward to what our next topic will be. Heaven knows what it’ll be, but I’m certain it’ll be just as stimulating as this one. Thank you very much for being here.

Thank you.

The other thing I’d like to say to my audience is please remember that you’re going to have references. This time, I’m going to provide you with some questions that, maybe if you want to read the references, you can go through and see if you can answer the questions. It’ll be just a little quiz. Thank you all.

Important Links

References

About Richard Wilson

Hot Topic Bold Talk | Richard Wilson | Callais Case Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.