Wisely, Saldaña chose to campaign for an open bench, removing the additional hurdle of attempting to unseat an incumbent judge. The seat was to be vacated by Republican Judge Margaret Keliher, who had decided to run for Dallas County judge of the Commissioners Court, although she had no intention of leaving the bench until the end of her term in January--or so she said. But a day before the publication of an article in the Dallas Observer ("Judge Fudge," May 9, 2002), which questioned Keliher's ethics in running for one office while holding another, she announced she would be resigning after all. On the effective date of her resignation, Republican Governor Rick Perry appointed the Republican nominee for the bench, David Kelton, an experienced, respected civil court master who, by virtue of his appointment, was granted instant incumbency.
"It was very discouraging," Saldaña says. "Suddenly the carpet gets pulled out from under your feet. The governor wants it to appear like he is being bipartisan and appointing the most qualified candidate. But it was a done deal. And it gives such an unnecessary political advantage to one side."
Saldaña can find some solace in the fact that she is not alone. At least four other Democratic judicial candidates are now cast against freshly appointed Republican incumbents who were once merely attorneys running on the same playing field. No sitting Republican judge (a redundancy since all 55 sitting judges in Dallas County are Republicans) has yet resigned solely as a means of anointing his or her successor. County Criminal Court Judge David Finn resigned to run for district attorney. Civil District Judge David Godbey resigned to secure his appointment to the federal bench. County Judge Lee Jackson resigned to assume his post as chancellor of the University of North Texas system. (The Republican majority on the Commissioners Court appointed Keliher to the post on Tuesday.) County Court at Law Judge David Gibson resigned after an ethics scandal. Family Court Judge Theo Bedard, however, may be the exception. In early August, she unexpectedly announced her plans to retire at the end of the month, four months before her term expires. Not surprisingly, courthouse observers consider Republican candidate Marilea W. Lewis a lock for the appointment. Lewis has been serving as Bedard's associate judge.
To expect a Republican governor, who is himself in a hotly contested race, to alienate his own base of support by appointing a qualified Democrat is to ascribe too much nobility to politics. But what Democrats find particularly offensive about these instant incumbencies is that they have come so late in the election cycle. They believe that visiting judges could temporarily fill these vacancies and keep the judicial wheels turning until the voters make their decision.
"I call them pre-election coronations," says Democrat David Hanschen, who is running for Bedard's family court bench. "When it goes to this extreme, it moves out of the normal range of political tricks and moves into the range of dirty tricks. Its purpose is to deceive the voters."
Dallas County Republican Party Chairman Nate Crain claims there was nothing political about these appointments. "It is simply a matter of appointing individuals to the bench who are the most qualified and will act with integrity and fairness."
Dallas County Democratic Party Chairwoman Susan Hays calls this "hogwash... These last-minute incumbencies are nothing more than a strategy move that makes it harder on my candidates to raise money."
Whether you believe it is bad politics or good luck, whether you believe the Democrats would do the same thing if they were in power, whether you believe that partisanship itself is at fault, turning judges into political whores, all sides agree that in an election year where no party dominates the political landscape, incumbency matters.
Conventional political wisdom holds: As goes the top of the ticket, so goes the bottom. "By the time voters get to judicial races, there is a higher probability they will vote their partisan instincts," says Harvey Kronberg, editor of the Quorum Report, a Web-based political hot sheet. "A Democratic county will vote for Democratic judges, and a Republican county will vote for Republican judges."
Democratic political analyst Dan Weiser says that Dallas, more than ever, is a marginal county--too close to call Democratic or Republican. Ron Kirk runs behind John Cornyn in statewide polls, but Dallas voters heartedly embrace their former mayor. Tony Sanchez may be running poorly in Dallas, but Weiser expects John Sharp (Democrat for lieutenant governor) to win the county over Republican David Dewhurst.
"I see Dallas as a toss-up," Weiser says. "It won't be enough to just be a Republican candidate for judge or a Democratic candidate for judge. That's when everything else comes into play." Incumbency, endorsements, qualifications, even mud. Which may be the reason we are seeing this final flurry of instant incumbencies.
How else do you raise your candidate above the noise created by the other 23 judicial candidates, particularly when judicial campaigns historically have been so antiseptic, possessing all the excitement of reading a résumé out loud? How else do you avoid voter fatigue, which causes about a 20 to 25 percent drop-off from the top of the ballot to the bottom, particularly this election cycle when the November ballot will be four pages long?
Truth is, incumbency is more important to the courthouse crowd than to the voters at large. Hang the appearance of impropriety. Money flows to incumbent judges because lawyers are afraid of ticking them off. "Attorneys will tell you that they would love to support you, but they can't because they have a responsibility to their clients," says Democrat Harryette Ehrhardt, who is running against newly minted County Judge Keliher.
Democratic county chair Susan Hays believes fund raising is precisely the reason Governor Perry appointed Joe Cox to the bench in July. "How surreal is it, that in Dallas County, a Democratic candidate [Patrick Strauss] could out-raise a Republican. You can bet they put Cox on the bench to help him with fund raising."
Success in fund raising, in turn, creates the wherewithal to buy name identification. In the case of instant incumbency, this translates into mass mailings, billboards and yard signs that can say, "Keep Judge Cox" or "Return Judge Keliher." (Re-elect would be blatantly false and prohibited.) Incumbency also paints the candidate with the patina of power, elevating him to judge, his honor, the bench and clothing him with the judicial trappings of a robe, a gavel, a venue. Speaking engagements are easier to come by; every jury panel becomes a source of support.
Of course, the ballot doesn't refer to incumbency--last-minute or otherwise--and while incumbency may anoint a judge with perceived experience, it is just part of the packaging of a judicial candidate. "It still comes down to why vote for me over my opponent," Weiser says. "If you can explain it in a phrase that people understand--that's what you want out of a campaign."
Republicans are using this kind of political shorthand to elect their judges: "They are tough on crime, they interpret the law and don't make new law, they are the taxpayers' guardians," declares Clayton P. Henry, project manager for the Dallas County Republican Party's Judicial Initiative.
On the strength of that message, neither Henry nor Republican county chair Crain believes they will lose a single judicial seat to the Democrats. They point to the Dallas Bar Association preference poll, which has every Republican candidate outscoring his or her Democratic opponent.
Democrats argue that bar polls are obsolete, dominated by conservative downtown law firms and are too "inside baseball" to have any real value to the voters. Although not without its critics, the Committee for a Qualified Judiciary, a political action committee with the stated mission of electing good judges, has more credibility--certainly in the eyes of Dallas Morning News editorial writers.
"If the Morning News doesn't know who you are or doesn't have a particular bone to pick with a judge, it will generally follow the recommendations of the CQJ," says former Judge Sally Montgomery, who has challenged the legitimacy of the CQJ, which has not endorsed her. She refers to a 1996 report by the Texans for Justice, a nonprofit research organization that "tracks the influence of money in politics": "Finally, the Committee for a Qualified Judiciary, headed by [Dallas Republican] oil magnate Louis Beecherl, spent $9,455. Most of this money came from Dallas lawyers, the majority of whom do corporate defense work."
Nonetheless, CQJ's evaluation is widely regarded by lawyers as being less of a popularity contest than the bar poll. Republicans tout its results as evidence of their past and future success on the bench. The CQJ has awarded qualified ratings to Republicans in 22 of this year's 24 contested judicial races. (Thirteen of 24 Democrats were rated qualified.)
Democrat Sara Saldaña and Republican David Kelton have been jointly endorsed by the CQJ in their campaigns for the 44th District Court. Both are intelligent, highly regarded attorneys who have strong support in both the plaintiffs and defense bars. But in an election year where partisanship may cancel itself out, and candidates are grasping for any tactic that might separate them from the pack, it's small wonder that Democrats are grousing about midnight appointments such as Kelton's.
"It's not enough for Republicans to have all 55 judges in Dallas County," Saldaña argues. "For them to appoint one of their own when there is the slightest opening just seems downright greedy and unfair."
