Bench Warmers

Being a Democrat, a Latino, a woman, Sara Saldaña believed she had chosen the right election cycle to run for civil district judge in Dallas County. With George W. Bush off the ballot, there was no better time--or so said the Democratic Party regulars when they convinced her and 23 other attorneys to take on the Republican monopoly that has ruled the courthouse for more than a decade. A partner in the "conservative Republican" law firm of Baker Botts, Saldaña had a good deal of bipartisan support from the downtown legal establishment. Fund raising was going well. Dallas County had been trending Democratic. And with an attractive Democratic ticket topped by a former Dallas mayor running for U.S. Senate and a big-spending Hispanic businessman running for governor, the down-ballot races seemed almost winnable.

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."
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Mark Donald
Contact: Mark Donald

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