Brandenburg and Lyle: The TT Interview

From left to right: David Lyle, senior counsel for state advancement, American Constitution Society, and Bert Brandenburg, executive director, Justice at Stake.
From left to right: David Lyle, senior counsel for state advancement, American Constitution Society, and Bert Brandenburg, executive director, Justice at Stake.

Raising money for judges running in partisan elections makes a lot of people nervous — from judges on down — and would-be reformers are hoping the Texas Legislature will do something to remove or reduce the apparent conflicts of interest in the selection of judges.

Bert Brandenburg, executive director of Justice at Stake, and David Lyle, senior counsel for state advancement at the American Constitution Society, were recently in Austin for a conference on the subject of political money in the courts.

The two talked with the Tribune about the effect of political money in judicial races, about the perception that judges are for sale and how to insulate the courts from the apparent — and sometimes real — conflicts of donor dollars.

The following is an edited and condensed transcript of the interview.

Texas Tribune: Is there any way to fix this?

Bert Brandenburg: The fear [judges] have — and Texas saw a lot of this before the rest of the country, but we’re seeing it elsewhere — is that what it means to elect a judge is changing under our feet. As the money comes in, it’s getting to the point where it’s really straining the definition of what it is that we want the courts to do. Do we want judges to be impartial, and not to answer favors? We’re putting more and more pressure on our judges. This is what the judges themselves are telling us, is that a lot of them are feeling trapped in the system. They’re forced to dial for dollars from people who then appear before them in court and in every controversial case, they have to look over their shoulder. ... And there is a fear that the public believes that justice is for sale.

Even more chilling ... we’ve done polling that shows that nearly half of state judges agree with that statement, that campaigns and cash are affecting courtroom decisions.

TT: This is nothing new, is it?

David Lyle: The perceptions are old, and the reality is old as well, and there have been studies over the years that have shown that there is a correlation between when judges take contributions and those parties appear before them. There is a linkage between the contributions and the decisions.

Our study looked at business cases. We did that because business organizations are powerful players in court elections now. But there are other organizations that play — the plaintiffs’ bar — and you can find those same sorts of correlations if you study that.

TT: Did your study look at Texas?

DL: It looked at all 50 states in the years 2010-2012. What we saw is that the public perceives there is an issue. Judges perceive there’s an issue. Our data and analysis show that there is a reality issue, too. It’s not just perception.

If you care about justice, there is a real issue with the level of money that’s sloshing around in the system now, the kind of bare-knuckle politics that’s found its way into judicial elections — the data shows it’s having an effect on how judges make decisions.

What that comes down to is, the more money judges take from business interests, the more likely they are to rule for business interests in cases before them. And by the time you get to the point where a judge is taking half of his or her money from business interests, they’re ruling for business interests in two-thirds of the cases.

TT: Is it just in partisan elections or is it also in merit elections that you see this sort of money and influence?

DL: There has not been a lot of money in merit races, and in fact our study does not find any kind of linkage between the small amount of contributions in merit races and subsequent decision-making.

There have been contentious retention races in the last five years or so, but those mostly have not involved large amounts of money. They have involved some money and a lot of political activism from the social conservative movement.

BB: Up until a few years ago, the amount of money that would get raised around retention elections was about 1 percent of what you see in the contested races. It is true that, along the way, you would occasionally have an episode, but it was always the exception to the rule. A few years ago, we started to see a few more races. In Iowa, you had three justices unseated by a lot of out-of-state money coming in from a social issues organization. You then had an Illinois justice facing a retention election who saw it coming and went out and just went gangbusters and actually warded off his opposition. And then something like that happened in Florida, where the groups were going after three justices at the same time and they, too, got on the stick and went out and raised money. It was like two cheers for the system. On the one hand, nobody went out and hijacked the court. On the other hand, you pushed these justices out into the fundraisers and into those rooms of donors who then appear before them.

The issue of political efforts to hijack courts is as old as courts itself. It’s always going to be around, no matter what system you have. ... The issue is, given what the courts’ job is, given that judges are different than legislators and [their job is] to decide cases fairly and not make promises and keep them, what kind of insulation do you build around the system?

TT: What are the best insulators?

BB: Traditionally, the merit selection-retention systems attract far less money, and they give the judges more confidence that they can do their jobs and decide a case fairly and not worry as much about interest groups. Some people feel that longer terms can do that, too, because you’re simply facing election less often.

All of the things you can do with campaign reform, you can do with judicial campaigns. So four states in the last decade adopted public financing for judicial races, so the judges could spend time with voters instead of donors.

The one thing that judicial elections have that other elections don’t is that, if things don’t work on the front end, there is a system of recusal on the back end. If the money is going to wash in from a contributor or from an outside group, then at least set up rules so that the judges have to think hard about whether they want to hear a case involving a supporter. 

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