Texas Supreme Court Justice: Electing Judges Is a Really Terrible Idea

Categories: The Courts

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There's something fundamentally troubling about seeing a judge on the campaign trail. Take Texas Supreme Court Justice Don Willett, for no other reason than that he has waded into the debate. He knows the system and has successfully held onto his place on the state's highest bench. Voters, assuming they know his name, could learn by visiting his campaign website that he is a "conservative," whatever that means in a courtroom.

They would also learn that James C. Dobson, the evangelical heir to Billy Graham and founder of Focus on the Family -- a man who doesn't much care for gays or their right to equal protection under the law -- endorses him as "the most conservative justice on the Texas Supreme Court. Tea Party patriots, pro-life and pro-family conservatives, limited-government advocates, constitutionalists and any who value American liberty should support Justice Don Willett,"

So, plaintiffs who happen to be gay, liberal or pro-choice might not be blamed for wondering whether Willett's ideologies will preclude a fair hearing. Or, for that matter, whether campaign donations will influence his rulings. There is now evidence that money does have an effect. A study conducted by the American Constitution Society for Law and Policy took nearly 2,500 business-related opinions, coded and merged them with reported campaign contributions.

ACS found that the more campaign contributions the justices received from business interests, the more likely they were to vote in their favor. A justice who gets half of his or her donations from business interests votes for those interests three quarters of the time. Interestingly there was a stronger relationship between voting and business contributions for Democratic justices than for GOP ones, primarily because Republicans are already predisposed to rule on behalf of business. And it's only getting worse. Campaign spending in state supreme court elections has exploded. In the 1989-1990 election cycle, state supreme court candidates raised less than $6 million. They raised more than $200 million between 2000 and 2009.

The Atlantic confronted Willett with these troubling findings, and far from being met with indignation, they found the justice in complete agreement. Which, if you think about it, might be even more disturbing.

"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," he wrote.

Yet if Texans are suspicious about judges who solicit and accept donations from those who may come before the court, that hasn't been enough to overcome the inertia behind this longstanding tradition. And, according to Willett, that resistance doesn't come from where you might think it would.

"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," he wrote. "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."

He insists that if ideology creeps into the courtroom, it'll be found in the laws on which his votes must be based -- laws, he says, are "tilted in favor of business."

"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."

Whether you buy Willett's assurances or not, he makes an incredibly salient point. Even if, in spite of the endorsements from pols like Texas Attorney General Greg Abbott and business titans like Foster Friess (who basically bankrolled Rick Santorum's presidential run), the Texas Supreme Court is indeed neutral, elections sure as hell don't give that impression, and when it comes to the judiciary, that matters.

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14 comments
Tim.Covington
Tim.Covington

Let's see. In the USA, judges come from one of two sources:

A. Elected by voters.
B. Appointed by people elected by voters.

I'm not seeing much of a difference there. Then you can throw in how long their judicial terms are (lifetime or a set period). Both have their plusses and minuses. 

But, as far as them getting into their positions, it still boils down to the will of the voters. If you do not like the people who are becoming judges, you need to convince more voters to cote the way you want them to.

mavdog
mavdog topcommenter

Willet is right on this issue.

MikeWestEast
MikeWestEast

It is not the business issue that riles the voters.  Once judges started crossing over into setting social policy either contrary to or ahead of public will, the voters knew keeping their vote is the ultimate way to enforce their will.  The situations you see in California where judges override public referenda on single clear cut issues are intolerable to Texans.  Clarify rules on support all you want.  Install tighter conflict of interest rules regarding contributors.  Whatever.  The voters still require the intentions of a prospective judge and want the ability to yank sitting judges when they feel necessary.  So-called "smart"  processes simply transfer the decisions to another group.  Why do it?  By definition, the voting public is always the smartest group that trumps all others and it needs to be the final word.

James080
James080

Let's see. Businesses, lobbyists, unions, PACs, trial  lawyers and special interest groups of every stripe and color contribute tens of millions of dollars to judges and legislators every election cycle. Do you actually believe they are giving away their money because the want "good government"? The truth is they are purchasing access and control of the legislative and judicial processes. The same is true of the governor's office. How many Perry donors ended up with grants from one of the three slush funds the legislature gives the governor to play with?  It is a myth that politicians serve the interest of their constituents.

Myrna.Minkoff-Katz
Myrna.Minkoff-Katz topcommenter

These are the God men.  They needn't answer to the public, you see.

John1073
John1073

If they really want to level the playing field, they should have them all run as non partisan.

MikeWestEast
MikeWestEast

@Tim.Covington It is not the getting them in.  It is the getting them out.  Whether it is that weird Montana judge or some appellate judge seeing something no one else has, the public needs fairly frequent process to cull the herd.  The terms need to be medium duration.  Increasingly people are starting to discuss what a bad idea lifetime appointments to Federal bench are, on both sides of political spectrum.

mavdog
mavdog topcommenter

@MikeWestEast

the voting public is always the smartest group that trumps all others and it needs to be the final word

completely, totally wrong.

if this were the case, there would not have been the dismantling of "seperate but equal" education in the school system and other unconsitituional laws overturned.

just because a majority of the voting public desires a law does not make it right nor just. the majority cannot just run roughshod over the minority because it can.

that is why there are "checks and balances" built into our Constitution.

NewsDog
NewsDog

@Myrna.Minkoff-Katz   But they do answer to the public. Every time they run for public election. Straight party voting has cost us a lot of really good jurists over the years.  

mavdog
mavdog topcommenter

@John1073 

open ballots w/o party designations have proved to be a very positive way of electing people in California. More middle of the road candidates get a majority, the candidates on the peripheral have lost.

MikeWestEast
MikeWestEast

@mavdog @MikeWestEast The checks and balances are between branches of government.  When people speak via referenda, that message is the fount of truth and resides above the three branches.  No check exists on the people except the written constitution, particularly when the people vote on a constitutional question.  Non-elected judges are increasingly casting aside referenda results on state constitutional questions that conflict with the judges' own beliefs.  That is wrong.  The best way to stop it is throw them out via election and send a stern message to the ones that follow.

Montemalone
Montemalone topcommenter

@mavdog @John1073 Never happen here because one party runs the State show. They make the rules. draw the districts, and count the votes. Why would they ever give that up? And you think a State referendum would change things?

Montemalone
Montemalone topcommenter

@MikeWestEast @mavdog So, for example, say Fox news accidentally sends out Blip-verts that kill their audience. Texas now has a Dem majority that go to the polls and vote to impose mandatory abortions on all women, impose a limit of one licensed firearm per household, and 1 box of ammo per year, and only if all members of the household complete an Associates Degree in gun safety, ban the use of handheld devices while in a car, and legalize gay marriage (and divorce) and decriminalize marijuana. 

This is the will of the people. You good?

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