POLS 207- Participants in the Legal System

Two Kinds of Actors on the Legal System

lay participants

• no formal, professional training in role

• “outsider” role

Elite participants

• often (but not always) have formal training in law and background in legal profession

• “insider” role

Grand Juries

Grand juries perform two functions

• review states evidence

• decide whether or not to indict accused

does the states case justify putting the person charged with the crime on trial

• if yes- issue bill of indictment

• if no- no bill

Important check on state power

• or “would indict a ham sandwich”

Texas Grand Juries

12 members, term of 3-6 months

• brazos county grand juries meet 2x a month

  • review several dozen cases/day

Method of selection:

• old way: “pick-a-pal” (pre-august 2025)

  • selected by “jury commissioners” who were themselves picked by district judge

  • issues: fears of “rubber stamp” and socioeconomic bias

• New way: random selection

  • similar to (petit) trial jury selection

Trial (petit) juries

Ideal: representative cross-section of the community

• qualifications to serve in TX

  • over 18 and eligible to vote

  • not under felony indictment

• Jury pool and the summons

  • lists often compiled from voter registration records

  • size of pool may vary depending on case

Long running concerns about jury representativeness

• racial and ethnic minorities often underrepresented

  • in part, due to how lists of potential jurors are compiled and also lower response rates

Selection of an impartial “jury of peers”

Voir Dire: preliminary examination of jurors

• jury selection? more like jury “de-selection”!

Kind of strikes (against potential jurors)

• for cause

  • e.g. juror cannot be impartial, has prejudicial knowledge of the case, etc

• Preemptory challenge

  • limited number of strikes with no cause given

  • here also, there are concerns for bias in jury selection

Attorneys

Represent other parties in court

• law degree is mandatory

Licensed by the state bar association

• must “pass the bar” exam and meet character requirements (for every state in which they practice law)

some terms:

• prosecutor: represents the state

• public defender: represents those who cant afford attorney

Judges

Many were first attorneys, but not all

each state sets qualifications and selection process for judges in state courts (at various levels)

• US Congress does this for federal courts (other than SCOTUS)

• qualifications vary by level of court

  • age requirement

  • law license

  • judicial experience

    • i.e. time on the bench

  • mandatory retirement age

Judicial selection in the states

Five principal methods of selecting judges:

• appointment by the governor

  • usually requires legislative confirmation

• Appointment/selection by the legislature

• partisan judicial elections

• non-partisan judicial elections

• merit plan/ missouri plan

  • initial appointment with retention elections

Gaining Judicial Office in Texas

TX constitution mandates partisan judicial elections

• both republicans and democrats resist changing this

• reality: ~66% of new judges appointed to vacancies by governor (but must retain office via re-election)

  • downballot candidates often at the mercy of top-of-ticket races

Terms in office:

• district: 4 years (low)

• appellate and above: 6 years

Removal: by impeachment

advantages of an appointed judiciary

classic arguments for judicial appointment:

• low voter knowledge

  • about “downballot” candidates in general

  • about unique role of judges in particular

• Judicial independence and insulation

  • from the political branches

  • from potential plaintiffs and defendants

  • from pressures and ethical problems of campaigning and fundraising

Advantages of an elected judiciary

arguments why judges should be elected

• its more democratic

  • i.e. why shouldnt the people choose?

• Better descriptive representation

• appointment cant really “take judges out of politics”

  • with appointment + long tenure, political pranches can use courts to entrench public policy beyond normal political process