The Southwestern Historical Quarterly, Volume 105, July 2001 - April, 2002 Page: 430
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Southwestern Historical Quarterly
What led Texas to adopt a method of judicial selection that has the
potential for subjecting the judiciary to unwarranted criticism? No clear
answer to the question exists. There is little historical analysis of judicial
selection available on the national or local level. Texas adopted a
process of popular election of the judiciary during a period when most
states were doing the same.' This paper will trace the evolution of the
Texas system of judicial selection from its inception as a republic in
1836 through the adoption in 1850 of a constitutional amendment to
provide for popular election of the judiciary. While Texas's initial judi-
cial system in 1836 was set up as a matter of expediency, the move to a
popularly elective judiciary from 1845 to 1850 was part of an extended
constitutional, legislative, and political debate over the best means for
protecting the integrity of the bench. A review of the facts reveals that
Texas's judicial selection system was a byproduct of a national trend
toward increased democratization of the judiciary in the late 184os and
185os. The Texas experience is more consistent with recent historio-
graphical interpretations of the national movement toward popular elec-
tion of judges that occurred in the mid-nineteenth century.
Historical interpretation of the evolution of judicial selection among
the various states has been an area long neglected by political and legal
historians. One reason for this vacuum is the lack of historical record on
the shifts to an elective judiciary. The first attempts at evaluating this
issue were done in the 194os and 1950s by Evan Haynes and James
Willard Hurst. Modern legal historians view their interpretation as the
"traditional" view of the elective mode of judicial selection.'
Haynes asserted that in the period 1830-1850 the movement to popu-
lar election of the judiciary was "a mere item in a long list of other
democratic and humanitarian changes."4 He further argued that the
move to an elective judiciary was based more upon emotion than a
detailed comparative evaluation of the appointive and elective systems:
It seems reasonable to say that the fundamental causes of change had very little
to do with the relative merits of this or that system of judicial selection and
' In 1832 Missassippi was the first state to modify its constitution to provide for the popular
election of all of its judges. New York followed suit in 1846. It has been noted, "Just over half of
the twenty-nine states that were part of the Union m 1846 adopted popular election of judges
and every state admitted since 1846 followed suit for some if not all judges." Charles H. Sheldon
and Linda S. Maule, Chooszng Justce: The Recruitment of State and Federal Judges (Pullman, Wash.:
Washington State University Press, 1997), 4.
s Kermit L. Hall, "The Judiciary on Trial: State Constitutional Reform and the Rise of an
Elective Judiciary, 1846-1860," Hzstorian, 45 (May, 1983), 338-339; Caleb Nelson, "A Re-
Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum
America," The Amencan Journal of Legal Hsstory, 37 (Apr., 1993), 190-191.
a Evan Haynes, The Selection and Tenure of Judges (n.p.: The National Conference of Judicial
Councils, 1944), 89.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 105, July 2001 - April, 2002, periodical, 2001; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101222/m1/474/: accessed January 21, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.