Bench Warmers

In many contested judicial races, the Republicans are grabbing all the incumbencies they can

"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.

Democrat Sara Saldaña, bottom, thought she was running for an open bench until her Republican opponent, David Kelton, top, was appointed to judge.
Mark Graham
Democrat Sara Saldaña, bottom, thought she was running for an open bench until her Republican opponent, David Kelton, top, was appointed to judge.

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."

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