Forget all the rhetoric about the Jacksonian premise of a popularly elected judiciary. The public wants cash out of the courtroom — and that could mean pushing elections out, too.
Megabuck contributions from courtroom players, however innocently invested, lead to serious mistrust of the courts: 84 percent of Americans believe judges should not hear cases from major campaign contributors, and 74 percent believe campaign contributions have some influence on a judge’s courtroom decisions, according to surveys conducted by Justice At Stake, a national nonpartisan group that monitors money in judicial elections.
Wallace Jefferson, the chief justice of the Texas Supreme Court, touched on the issue of appearances in last February’s State of the Texas Judiciary address, noting the “corrosive influence of money in judicial elections.” State Rep. Richard Pena Raymond, D-Laredo, says a concern about “lawyers and law firms out there essentially trying to game the court at the highest level” prompted him to propose a bill last session outlining a recusal standard for high-court judges whose political contributors had business before them.
Meanwhile, Texas claims the fifth-highest spot among all states in fundraising by Supreme Court candidates in the last decade, according to Justice at Stake. Most of that money comes from law firms and lobby shops whose clients appear regularly before the court, a Texas Tribune analysis of campaign contributions records found.
Firm contributions: 2000-09
Source: Texas Ethics Commiss
The top donors were the Vinson & Elkins, Fulbright & Jaworksi, and Haynes & Boone law firms, followed closely by the HillCo PAC (the political action committee of the public affairs consulting and lobby firm HillCo Partners) and tort reform group Texans for Lawsuit Reform. Employees at the top 10 law firms donated an additional $335,678 to Supreme Court justices over the same period.
Since his sharp call for change last February, Jefferson says there’s been “no official progress” (two bills aimed at reform last session, including Raymond’s, languished in committee, while a third died on the Senate floor), though there’s been “a lot of dialogue taking place around the country and in Texas.”
It’s true. The 15 candidates currently competing for three seats on the Texas Supreme Court — and the eight competing for just as many on the Court of Criminal Appeals — are doing so in the midst of a robust national conversation about the legitimacy of judicial elections.
In June, the Supreme Court handed down Caperton v. Massey, in which it held for the first time that campaign contributions threaten judicial neutrality and could serve as grounds for recusal under the due process clause of the U.S. Constitution. Two weeks ago, the Court dropped Citizens United, a decision that opened the campaign finance door to corporations and the legal community agrees could profoundly affect judicial elections. And Sandra Day O’Connor, in her post-Supreme Court vocation as a judicial election reform advocate, continues to publicly decry competitive judicial elections.
Still, Lynne Liberato, the partner who oversees Haynes & Boone’s political action committee, says it is “just crazy” to believe that “by giving $1000 or $5000 to a judge, that's going to change his or her opinion.” Liberato says the firm, which the Tribune found has donated at least $158,000 to incumbent Supreme Court justices since 2000, contributes because of its “interest in a stable judiciary” and that it felt a responsibility to participate in the “system as it exists.” (Representatives of Vinson & Elkins and Fulbright & Jaworski did not return requests for comment.)
“We respect the fact that in Texas we have elections,” Liberato says. “Elections require finances, and the main entities that are going to be interested, and understand the importance of the elections, are going to be lawyers.”
Contributions By Employees At Top Law Firms: 2000-09
|Vinson & Elkins||89||$45,346||$510|
|Haynes & Boone||116||$36,150||$312|
|Fulbright & Jaworski||115||$28,445||$247|
|Thompson & Knight||65||$20,100||$309|
|Locke Lord Bissell & Liddell||39||$15,950||$409|
|Bracewell & Guiliani||51||$12,175||$239|
|McGinnis Lochridge & Kilgore||25||$5,042||$202|
Source: Texas Ethics Commission
In December, the Texas Supreme Court unanimously overturned a $14 million jury verdict against Haynes & Boone client Whirlpool — but Liberato, who happened to lead the Whirlpool legal team, said she didn't worry about how that could appear to the public in light of the firm's contributions. “As much as I hate to say to somebody, 'I lose, too,' the fact of the matter is, 'I lose, too.' I don't think [contributing to a judge] makes any difference," she says.
The Court of Criminal Appeals, which in Texas’ bifurcated judiciary serves as the highest criminal court, doesn’t have the same problem with appearances. It raised just more than one-hundredth of what its civil court counterpart did, with the largest contributor giving only $8,000 over the nine-and-a-half-year period the Tribune examined.
That’s a trend that plays out in criminal courts nationally, says Justice at Stake spokesman Charles W. Hall. Why are criminal court judges bereft next to their cash-flush civil brethren? “Coincidentally or not, the corporate bottom lines are not affected by whether a bank robber gets 10 or 20 years in prison,” he says. “The bottom lines are affected however by whether a large scale lawsuit is upheld or overturned.”
Liberato says her firm doesn’t donate to Criminal Court of Appeals judges partly because “it just hasn't come up” and partly because its partners don’t practice before the court. (The firm doesn’t donate to judges or judicial candidates in cities where it doesn’t have offices, either.)
For his part, Jefferson says he's more concerned with the way judicial elections shift with the political tide, not who's bankrolling judges' campaigns. “I think most judges don't sit down at night and go over the list as to who has contributed and who has not contributed to their campaign,” he says. While he's troubled by public perception of a “quid pro quo” system, he says, “If you were to ban all contributions from lawyers that have cases in your court, you wouldn't be able to pay to educate the public on who to vote for.”
The main flaw in Texas’ system, Jefferson says, is that the public relies on judges’ place on the ballot, rather than knowledge of their experience, when casting votes. “Party affiliation doesn't tell you who's good,” he says. “You're lucky if the judge you pick is qualified to make life and death decisions or rule on million dollar verdicts. It's like flipping a coin.”
Matt Stiles and Kosaku Narioka contributed to this story.