Should a Democrat Try DeLay?

As you might recall, Tom DeLay's petition to have his case heard by a different judge will be decided today. Why does DeLay want a new judge? Because the one currently assigned, Bob Perkins, donated some $3,400 to Democratic causes, including B.B. Schraub, the administrative judge to whom the petition was referred, is a Republican. Schraub himself has donated at least $6,400 to Republican campaigns. Schraub, in turn, assigned the case to retired state district judge C.W. Duncan, who now goes in as needed in the capacity of "visiting judge."

But if the DeLay case is reassigned, isn't it just as likely that the new judge will have contributed to candidates or causes on one side of the other? What effect will DeLay's request have in a state where all the judges are elected and thus are in some way beholden to some party's interest?

When I posed this question to a Texas lawyer familiar with the DeLay prosecution, he responded that a decision in granting DeLay's request could bring the Texas system to its knees. (Those weren't his exact words -- the notebook that contained those was in a bag that left my possession by unlawful means.*) His point was that if suddenly judges can be forced to recuse themselves because of their political affiliation, who would be left to try the political cases?

Of course, even if such a precedent were to be set, there would still be a few judges who could be considered uninfluenced enough to preside over those cases. By the reporting I've seen so far, it looks like Duncan is the sort of judge who would qualify.

NewsMax carries the Associated Press story on Duncan -- unfortunately AP gave it the misleading headline "Democrat to Decide DeLay's Judge Motion." The article itself, however, seems to suggest that the only thing that would point to Duncan being a Democrat is the fact that he was appointed by a Democratic governor way back in 1978. (He was officially elected to the position two years later, and then re-elected in 1984.) Maybe they also checked his voter registration? I have no idea.

What we do know is that he's 81; he's retired, so presumably not beholden to any special interest; and over the last 15 years or so he's reportedly given money to campaigns of both Democrats and Republicans. His reputation, according to the Austin American-Statesman and San Antonio Express-News is that of an objective mediator.

(Isn't that what all judges should be?)

Debater Eric passes along this tidbit: Virginia has a system where judges are appointed by the governor for set terms, but reappointments are done with the help of a performance evaluation. The evaluation is based on things like percentage of decisions overturned, reviews by attorneys who've appeared before the court, and surveys filled out by jury members.

I couldn't find any links to reference materials confirming that this is in fact the state's system (anyone know of any?) but if true, it seems eminently sensible. Appointees aren't subject to the whims of the masses in elections, but they are nonetheless accountable for their performance. (Speaking of political offices where popular vote might not be the best means of selection, one of these days we'll have a thread on the 17th amendment. That should be fun.)

What do you think, Debaters? Is politicization a flaw inherent in any system in which judges are elected? What about a system of appointments with performance evaluation, like in Virginia? Would it solve the politicization problem if only people who didn't contribute in any way to political campaigns could be appointed?

By Emily Messner |  November 1, 2005; 5:14 AM ET  | Category:  Looking Ahead
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This quiz is easy. If DeLay were tried and found guilty with a Democrat as the presiding judge, it would only serve to galvanize DeLay's base. The next thing you'd know, we would have a constitutional amendment to make him Speaker of House for life.

Better to just start with a Republican and if DeLay is found guilty, hope that the judge has led a fairly blameless life and can withstand deep scrutiny.

Other than special problems with Run Amok Speakers, it would seem that flaws of elected judges don't excite the same passions as the ones who are appointed to SCOTUS. Or have I missed something?

Wow, the LVII amendment. Are you sure you're not trying to start something? Like maybe the suggestion that only Speakers for Life can appoint the Upper House.

All of this was said with a grin. I enjoy your columns. Thanks.

Posted by: earlybird | November 1, 2005 07:04 AM

It is hard to find anything about the Virgina Judicial Evaluation Program... here is one link from when it was in the public hearing phase:

It is also mentioned here if you scroll down a bit:

I wish I had a better idea how effective it has been in helping judges improve and how the state legislature was using the info though.

Posted by: Eric | November 1, 2005 11:13 AM

Does this mean every Democratic, pro-choice, anti-gay, Buddhist, Latino defendant is entitled to an Democratic, pro-choice, anti-gay, Buddhist, Latino judge?

This is ridiculous.

Delay should be able to take advantage of a change of venue if he can make the case (funny, he created this particular Democratic venue) but he should get whatever judge that is randomly assigned.

Posted by: whittyone | November 1, 2005 03:39 PM

I agree with wittyone. Murderers can't choose a Liberal judge over a hanging judge. Not that Delay is a murderer...but once you commit a crime, you give up certain rights and are at the mercy of the court. You can't choose your can request a jury trial, however. Maybe not in this case....I don't know the specifications of a trial such as this.

Posted by: BT | November 1, 2005 03:48 PM

I dislike resorting to cliche's, but sometimes cliche is what is needed to accurately pinpoint what is going on, so here goes:

Someone wiser than Tom Delay once said: "Power corrupts. And absolute power corrupts absolutely." And that is why Tom Delay, Karl Rove, Scooter Libby, Dick Cheney and George W. Bush are in trouble in their own respective ways. Wise leaders know this principle. And, if you take any time studying history at all you know that any leader who leaves a lasting, positive legacy has grasped the principle and avoided the seductiveness of having absolute power.

Here is why absolute power is the downfall of so many leaders in our American system of government: Absolute power in America ultimately rests with the people. Sooner or later, those who violate the principle by succombing to the narcotic the weilding of such power confers, must face the bar of public opinion.

George W. Bush, Dick Cheney, Karl Rove, Scooter Libby, Tom Delay, Bill Frist: All of these leaders are presently suffering from low opinion polls. Not because of the media. Not because of democratic opposition. Not because of enemies. And not because of bad luck or events beyond their control. They are fast becoming objects of public scorn because they violated the public trust. And they succombed to the entreaties of absolute power.

Posted by: Jaxas | November 2, 2005 11:40 AM

I understand that Reggie Walton, the jusge in Scooter Libby's case, is a Republican who worked in Bush Sr.'s White House. By the Delay standard, that would not qualify as an impartial judge and the prosecutor should ask to have him removed.

However, he is an unelected judge so maybe its only the Texas judges that can't be impartial since they are elected.

Posted by: rd | November 4, 2005 03:18 PM

20 Amazing Facts About
Voting in the USA
by Angry Girl

printable version
Did you know....
1. 80% of all votes in America are counted by only two companies: Diebold and ES&S.

2. There is no federal agency with regulatory authority or oversight of the U.S. voting machine industry.

3. The vice-president of Diebold and the president of ES&S are brothers.

4. The chairman and CEO of Diebold is a major Bush campaign organizer and donor who wrote in 2003 that he was "committed to helping Ohio deliver its electoral votes to the president next year."

5. Republican Senator Chuck Hagel used to be chairman of ES&S. He became Senator based on votes counted by ES&S machines.

6. Republican Senator Chuck Hagel, long-connected with the Bush family, was recently caught lying about his ownership of ES&S by the Senate Ethics Committee.

7. Senator Chuck Hagel was on a short list of George W. Bush's vice-presidential candidates.

8. ES&S is the largest voting machine manufacturer in the U.S. and counts almost 60% of all U.S. votes.

9. Diebold's new touch screen voting machines have no paper trail of any votes. In other words, there is no way to verify that the data coming out of the machine is the same as what was legitimately put in by voters.

10. Diebold also makes ATMs, checkout scanners, and ticket machines, all of which log each transaction and can generate a paper trail.

11. Diebold is based in Ohio.

12. Diebold employed 5 convicted felons as consultants and developers to help write the central compiler computer code that counted 50% of the votes in 30 states.,2645,61640,00.html

13. Jeff Dean was Senior Vice-President of Global Election Systems when it was bought by Diebold. Even though he had been convicted of 23 counts of felony theft in the first degree, Jeff Dean was retained as a consultant by Diebold and was largely responsible for programming the optical scanning software now used in most of the United States.

14. Diebold consultant Jeff Dean was convicted of planting back doors in his software and using a "high degree of sophistication" to evade detection over a period of 2 years.

15. None of the international election observers were allowed in the polls in Ohio.

16. California banned the use of Diebold machines because the security was so bad. Despite Diebold's claims that the audit logs could not be hacked, a chimpanzee was able to do it! (See the movie here:,2645,63298,00.html

17. 30% of all U.S. votes are carried out on unverifiable touch screen voting machines with no paper trail.

18. All -- not some -- but all the voting machine errors detected and reported in Florida went in favor of Bush or Republican candidates.,2645,65757,00.html

19. The governor of the state of Florida, Jeb Bush, is the President's brother.

20. Serious voting anomalies in Florida -- again always favoring Bush -- have been mathematically demonstrated and experts are recommending further investigation.,10801,97614,00.html

Posted by: Che | November 6, 2005 04:45 PM

The Governor only appoints judges in Virginia if the General Assembly is not in session. Even then, the judges must eventually stand for "election" by the General Assembly during the next term. The performance evaluations are not fully phased in, to my knowledge.

Posted by: S Pi | November 7, 2005 10:03 AM

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