Texas has chosen the worst possible way to select the state's judiciary: partisan judicial elections. It has resulted in a Court of Criminal Appeals (the state's highest appeals court for criminal appeals) that is stacked with ex-prosecutors who rarely, if ever, meet a conviction they can't find some way to uphold and a Texas Supreme Court that is heavily pro-business. For example, one UT professor found that from 1998 to 2005, Wal-Mart batted 1.000 in front of the Texas Supreme Court -- it only won 56% of its cases nationwide.
So when the left-leaning American Constitution Society (ACS) released a report showing just how bad it looks when state judges vote the way their campaign donors would like (of course, the judges could already be ideologically predisposed to vote that way), a writer for the Atlantic reached out to Texas Supreme Court Justice Don Willett to get his thoughts. Justice Willett's thoughts, set forth in an e-mail response, are eloquent and worth quoting at length:
My website only accepts contributions during campaign season. My last day to fund raise was March 6, 2013, and thankfully I can't raise another penny until summer 2017, when the 2018 reelection campaign begins. State law restricts judicial candidates in terms of when they can fund raise, from whom they can fund raise, and how much they can fund raise.
The ACS study raises difficult and consequential questions, familiar questions that frankly can't be raised enough. A former Texas Governor, Sull Ross, once said, "The loss of public confidence in the judiciary is the greatest curse that can ever befall a nation." I don't disagree. The Texas Constitution, however, mandates a judiciary elected on a partisan ballot. Calling this system "imperfect" is a G-rated description, and I'm intimately acquainted with the myriad drawbacks, and they are plentiful.
On the one hand, Texans insist on their right to elect their judges (though they can't name any of us). On the other hand, they harbor suspicions about the role of money that ACS chronicles. I've long favored smart judicial-selection reform -- every member of my court does -- and every legislative session, reform measures are filed ... and then they fail. Both major parties and lots of activist groups in Texas oppose changing the current partisan elected system. Interestingly, the business lobby and tort-reform groups all favor scrapping our current judicial-selection system.
In other words, those who allegedly benefit from the current system aggressively favor replacing it. But the status quo is deeply entrenched, and legislatively, the wheels always come off.
I haven't studied the ACS reports findings or methodology, but I understand 100% the suspicion that donations drive decisions. That skepticism siphons public confidence, and that's toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn't happen.
It's also important to underscore that the laws we interpret are enacted by a very business-friendly legislature. My court doesn't put a finger on the scale to ensure that preferred groups or causes win, but the Legislature certainly does. Lawmakers are fond of lawmaking, and the business lobby exerts significant influence on state policymaking. Then those laws come to the courts for interpretation. If the legal playing field is tilted in favor of business, that's chiefly due to legislative choices, not judicial ones. And when those choices go too far and collide with constitutional guarantees, I've voted to strike them down.
No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.
I'd be shocked if people didn't look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system. Hopeful? Yep. Optimistic? Nope.
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Judicial elections in Texas have been a hobby horse of mine for some years -- track down my op-ed in the Austin American-Statesman from 2007 if you're an Internet sleuth -- and it is encouraging to see a Republican Texas Supreme Court Justice make a cogent case against the cesspool that is Texas's current judicial election system. It sounds trite, but it would take you a grand total of five to ten minutes to look up your state representative, go to their Web site, call or e-mail them and point them towards Justice Willett's comments.