This is one in a series of occasional stories about ethics and transparency in Texas government.
Tom Phillips, a former chief justice on the Texas Supreme Court, has a strong opinion of the state’s judicial elections. “Of the ways you can elect judges,” he said, “Texas has one of the worst systems.”
In 1988, when he ran for the state’s highest court, he voluntarily capped individual donations to his campaign at $5,000. Today, his law firm — which regularly represents clients before the state Supreme Court — routinely donates tens of thousands of dollars to the campaigns of the justices who preside over those cases.
Texas is one of 22 states with judicial elections, which often involve large donations from law firms, special interests and individuals who might have a stake in particular court cases.
It’s an arrangement that raises questions about impartiality, and has long prompted calls for change from lawyers, lawmakers and even judges themselves. The latest came last month, when state Rep. Richard Peña Raymond, a Laredo attorney, filed House Bill 129 to require judges to recuse themselves in cases where they have received $2,500 or more from a party or law firm arguing before them.
“The public wants to hold the judiciary in higher esteem than other parts of government," he said.
Several former Texas Supreme Court justices agree the system is in need of reform, but say they have never let campaign contributions affect their rulings.
Others argue that law firms often have more insight than the general public into who is best qualified to serve, so it makes sense for them to donate to judicial campaigns.
“The one group of people who knows who’s qualified is lawyers.,” said Justice Debra Lehrmann, who has been on the court since 2010. “People who are not qualified cannot raise the money it takes.”
Defenders of elections for judges say the alternative — having elected officials appoint judges — would be worse because it would put the process behind closed doors.
“Voters insist they want the right to elect their judges,” said Supreme Court Justice Don Willett, who has served since 2005. “Ask them to name one, and they'll likely come up blank. But they want a voice, even as they say that judicial fundraising raises appearance concerns.”
A case that illustrates those concerns is one that former Chief Justice Phillips, now an Austin-based attorney for the law firm Baker Botts, helped argue before his former colleagues.
In 2001, 71-year-old Leonel Garza died of a heart attack after taking the anti-inflammatory drug Vioxx for 25 days. His family sued the drug manufacturer Merck & Co. in what was one of numerous wrongful death lawsuits filed around the country. A district court and a San Antonio appeals court agreed with the family, awarding them nearly $7.75 million in damages.
Merck — which was represented by Baker Botts — appealed to the state Supreme Court, arguing that Garza had a history of heart problems and that there was no proof that the company’s drug caused the heart attack. In August 2011, the court sided with the company.
In the 10 years preceding the decision, justices who sided with Merck in the 7-0 vote received at least $85,000 combined in campaign contributions from the Baker Botts political action committee. Justice Nathan Hecht, who wrote the court’s opinion in the case, received $20,000. Chief Justice Wallace Jefferson received $12,750.
Andrew Baker, a managing partner at Baker Botts, said the firm is “confident that the court resolves all of its cases on its conclusions about the law and the facts, and not on any improper bases.”
As long as the state requires judges to compete in partisan elections, he said, "our partners who voluntarily contribute to our political action committee understand that judicial candidates need sufficient campaign funds to inform the voters about who they are and why they should serve."
Ethics experts who have studied judicial contributions say they are less worried that companies and law firms are pressuring judges to vote a particular way in specific cases. Their bigger concern is that the current system gives a leg up to candidates who might have an ideological bias against plaintiffs.
“I try to draw a distinction between buying a vote and buying a judge with a particular viewpoint,” said Billy Corriher, a legal analyst with the left-leaning Center for American Progress who authored a report last year on campaign contributions in judicial elections.
In the years after the Texas Constitution of 1876 established judicial elections instead of appointments, elections were “conducted quietly and were rarely contested or remarkable,” Seana Willing, executive director of the State Commission on Judicial Conduct, wrote in a 2010 article in the South Texas Law Review.
That changed under the tenure of Bill Clements, the first Republican Texas governor in more than a century, who appointed members of his own party to fill vacant seats on the court throughout the 1980s. Plaintiffs’ attorneys had to spend large sums of money to re-elect Democrats.
In 1987, 60 Minutes ran a special on the Texas Supreme Court called “Justice for Sale,” which focused on the court’s dismissal of an appeal by Texaco in the company’s losing contract case against Pennzoil. According to a report in Time, Pennzoil’s attorney and his firm contributed a combined $248,000 to members of the court for their campaigns between 1980 and 1987, while Texaco’s attorney and his firm donated a combined $190,000.
In the 1994 Democratic primary between Rene Haas and Raul Gonzalez, the two candidates together spent nearly $4.5 million campaigning. The following year, the Texas Legislature responded by passing the Judicial Campaign Fairness Act, which limited contributions to justices to $5,000 for individuals and $30,000 for law firms.
That measure may have curbed spending, but researchers found it didn't curb influence. Madhavi McCall, a political science professor at San Diego State University, conducted a study of the relationship between judicial decisions and campaign contributions in 530 Texas Supreme Court cases between January 1994 and June 1997. “In every instance,” she said, “the probability of a party garnering votes increases if the party contributed to a given justice’s campaign.”
Questions around judicial elections have surfaced at the national level, not just in Texas. In 2009, the U.S. Supreme Court ruled in favor of Hugh Caperton, a mining company president who argued that his 3-2 loss to A.T. Massey Coal Company before the West Virginia Supreme Court was unfair because Massey's chief executive had spent $3 million to elect a sympathetic justice to the court. Since that ruling, reform advocates have worried that the focus on such an extreme case will mean more subtle forms of influence won't get the proper attention.
Defenders of the elective system say that the alternative — a system of nominations like the one used for the U.S. Supreme Court — is far more prone to partisan influence. Michael DeBow, a professor at the Cumberland School of Law at Samford University in Alabama who has studied the merits of various systems for selecting judges, said the same law firms that currently donate would continue to dominate the selection process in a secretive game of “inside baseball.”
“My gut feeling is, better the devil you know,” DeBow said.
Scott Brister, who served on the state's high court from 2003 to 2009, said allowing judicial candidates to affiliate with political parties gives voters at least some sense of whom they’re voting for. But others say it steers the candidates dangerously close to telling voters — and law firms with money to spend — how they would rule once elected.
State Sen. Dan Patrick, R-Houston, has filed Senate Bill 103, which would bar voters from automatically voting for judges affiliated with a party through “straight ticket” voting, requiring them to instead mark each judicial candidate separately. State Sen. Robert Duncan, R-Lubbock, has filed Senate Joint Resolution 34, which would preserve partisan judicial elections, but subject each elected judge to a nonpartisan “retention election,” meaning a simple yes or no vote by the public on whether they should remain in office.
“Every suggested reform has strengths and weaknesses, and I confess that I haven’t cracked the code on the perfect replacement,” Willett said. “But I’ve endured firsthand the myriad drawbacks to our current system, and they are plentiful.”