To illustrate the key points in his 2012 Brody Award convocation address, Texas Supreme Court Chief Justice Wallace Jefferson invoked the memory of his great-great-great-grandfather, a slave whose owner was a Texas judge. The story, he said, shows what makes the United States great and, in part, why the system of electing judges is flawed.
In 1855, as Texas was considering secession over slavery, Judge Nicholas W. Battle—the owner of Jefferson’s ancestor—was asked to rule on a case in which a free black man opted to sell himself into slavery. Despite the cultural landscape, Battle determined that allowing a man to sell himself would be unconscionable, which led Jefferson to his first point.
“A judge must ignore popular opinion, must discard self-interest, and decide each and every case according to principles that exist in our constitution, our statutes, and the common law,” he told a crowd of community members and students April 1.
In order to do that, judges can’t be bound to restraints imposed by popular opinion. “The founders of our country intended that the judicial branch be protected from the inevitable sweeps of unstable majorities,” he said. Jefferson is the first African American to sit on the Texas Supreme Court and the first to serve as that court’s chief justice—a post to which he was elected. He was honored Sunday as the seventh recipient of Colby’s Brody Award, which recognizes state or federal judges for their integrity, compassion, humanity, and judicial craftsmanship.
Texas is one of fewer than 10 states that use partisan elections to seat judges of state courts. In running for the seat of chief justice at the request of then-Governor Rick Perry, Jefferson campaigned to develop name recognition in his state of 25 million people. But the campaigning didn’t matter, he said. Three primary factors rule when it comes to election of judges: party affiliation, the sound of the candidate’s name, and money. He asked the audience, including judges and lawyers, “What place does any of this have in evaluating a judge’s merit?”
The money part especially disturbs Jefferson, who read aloud the text of an e-mail to a lawyer from a judge requesting campaign contributions. Jefferson then asked, “What is a new lawyer to do when an incumbent justice … asks them directly for a contribution? What are they supposed to do, say no?”
“I am sickened by this type of request that occurs in campaigns, but more than that I am appalled that any state would think that this is okay.”
Ultimately, he said, the system he disapproves of hurts the most vulnerable. “Those with resources will find a way to protect what they have,” he said. “Who will speak for those who do not have the resources?” Families who have been wrongfully evicted. A victim of spousal abuse. The mother whose parental rights were terminated without cause. The innocent man in jail for a crime he didn’t commit. The people who have little money to pay the lawyers lose again.
But Jefferson does not despair. Remembering the story of his ancestor, he is encouraged by the ability of Americans to do what is right. “We can overcome the most stifling obstacles and succeed in this great country because we have accepted a set of ideals contained in our laws and the Constitution that can overcome financial challenges, broken homes, even prior conditions of servitude,” he said. “Even after the most profound and bloody conflict, the nation can come together under a constitutional structure that promises equal protection of the laws for all.”
The Morton A. Brody Distinguished Judicial Service Award, named for the late U.S. District Court judge, honors an outstanding federal or state judge every other year. Prior to his talk, Jefferson, who has advocated for adequate funding for our state courts, fair access to justice, and quality defense for the indigent, received an honorary degree from President William D. Adams.