Would You Trust These State Justices to Review Your Case?

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In Texas, judges campaign like politicians, with predictable consequences for judicial integrity, independence, and equal justice under a rule of law. (Third in a three-part series)

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Members of the Texas Supreme Court stand for the National Anthem at the Texas Legislature in 2011. (Eric Gay/Associated Press)

Disciplining judges for making an unpopular decision can only undermine their duty to apply the law impartially. Indeed, as Sir Matthew Hale, a respected English judge, explained centuries ago, the duty to be impartial and to be indifferent to popularity is an essential attribute of the judicial office.

-- Retired United States Supreme Court Justice John Paul Stevens, "Should We Have a New Constitutional Convention?", New York Review of Books, October 11, 2012.

Judicial elections, races where sitting judges or judicial candidates beg for votes from past, present, and future litigants, are now sadly the norm in America. They occur, to varying degrees, in 39 states, undermining justice, prejudicing litigants, and generating genuine alarm among old-school conservatives. "When you enter one of those courtrooms," retired United States Supreme Court Justice Sandra Day O'Connor, the first Reagan appointee, wrote in an op-ed piece in 2010, "the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."

Yet litigants everywhere might reasonably have such worries. Supporters of judicial elections claim they are necessary to ensure that the judiciary is more accountable to its constituents. But the whole premise of Western law, and the underpinning of the our justice system, is that judges must maintain objectivity and independence -- and avoid even the appearance of impropriety -- if they are to sustain the judiciary's role in law and governance. The juxtaposition is irreconcilable, of course; the more judges talk and act like politicians, they less able they are to generate faith and confidence in the authority and accuracy of their rulings.

But this eternal truth hasn't spared this generation of Americans from the unseemly judicial election campaigns which now dot the country. It's gotten measurably worse in the past decade or so, thanks in large part to the Supreme Court, which declared in 2002 that the free speech principles in the First Amendment barred enforcement of state judicial ethics rules that prevented judicial candidates (and sitting judges) from "announcing" their "views on disputed legal or political issues." This ruling, Republican Party v. White, was to judicial elections what the Citizens United ruling has been to presidential election campaigns.

Part one of this Atlantic series looked at how zealous state legislators have sought to undermine judicial independence, by seeking to limit the authority and jurisdiction of state judges or by threatening them with impeachment. Part two of this series looked at the corrupting influence of corporate money in judicial elections all over the country; how justice is bought and sold under the banner of First amendment freedoms. Now comes part three, chronicling the damage judicial elections cause to state court judges -- how judges themselves undermine their own authority and integrity by begging for votes and appearing partisan and partial.

THE CODE OF TEXAS

Let's focus briefly on just one of these states, Texas, which has some of the most permissive judicial election laws in the nation and where, predictably, special interest money has poured into judicial races.* And let's start with the core obligations that all judges and judicial candidates there have as a matter both of law and ethics. For example, the Texas Code of Judicial Conduct, which governs the conduct of state court judges, is clear and quite relentless in its concern for the appearance of impropriety on the bench. Canon 2B, for example, states that a judge

shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

Canon 3B(2) states that a judge "shall not be swayed by partisan interests, public clamor or fear of criticism." Section 3B(5) states that a judge "shall perform judicial duties without bias or prejudice." Section 3B(6) goes even further along these lines, stating that a judge 'shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice..." Cannon 3B(10) offers this:

A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected.

Canon 4, which addresses "extra-judicial activities," states that "a judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's ability to act impartially as a judge." And Canon 5 of the Texas Code of Judicial Conduct is right on point. Canon 5(1) states that "a judge or judicial candidate shall not

make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge.

"PROVEN. CONSERVATIVE. EXPERIENCED."

Now, keep all that in your brain for 30 seconds while you watch this 2012 judicial campaign advertisement for Don Willett, an associate justice currently sitting on the Supreme Court of Texas. (I selected him for no particular reason -- other judges and justices in the state also run advertisements like this, or otherwise preen and push for votes. His is an illustrative example.)

Consider it a form of parlor game. The ad is perfectly legal. But how many apparent violations of the Code of Judicial Conduct did you think you spotted in it? How many words or images in it suggested to you the possibility of bias or prejudgment on the part of the justice? How would you like to be an atheist appearing before Justice Willett? (On that note, check out this other Willett ad). How would you like to be a liberal? And how would you like to be a lawyer, any lawyer, citing the Affordable Care Act, the federal health care law, which from the day in March 2010 when it was signed by President Obama has always been the law of the land?

Now watch this commercial from Willett, in which he compares himself to an umpire and pledges to be impartial to the litigants before him.

This is how Texas justice, and Texas judges, operate. Now compare what you heard and saw in that last campaign commercial with the contents of Justice Willett's slick website. Again, it's all perfectly legal. The justice's bumper-sticker slogan is: "Proven. Conservative. Experienced." and he wants to be certain that you understand, right from the get-go, that he's a popular guy. For example, he's proud to have earned the support of James Dobson, the founder of Focus on the Family, and of Foster Friess, the rich, conservative activist. How would you like to be one of those folks and have your case heard before Justice Willett?

Greg Abbott, the Attorney General of Texas, whose state lawyers are constantly before Justice Willett, also chimes in online. "A brilliant legal mind and outstanding judge, Justice Willett has an impeccable conservative record," the state's leading prosecutor wants you to know. Dobson goes further: "Tea Party patriots, pro-life and pro-family conservatives, limited-government advocates, constitutionalists and any who value American liberty should support Justice Don Willett." And, look, debunked historian David Barton chimes in: "Keeping Justice Don Willett on the Texas Supreme Court is indispensable to winning the fight for freedom."

Let's anyone have any doubt about where this judge stands on the issues, Justice Willett has graciously listed the names of many more people and organizations eager to on the record as endorsing him. In case the endorsements don't quite deliver the message behind Justice Willett's jurisprudence, here's a sample of the sub-groups he lists as friends:

Pro-Life Leaders, Free-Market & Limited Government Advocates, Homeschool Champions, Young Conservatives, Small-Government Libertarians, Gun-Rights Advocates, Leaders of Republican Party of Texas Auxiliary Organizations, and Tea Party Patriots.

CALL AND RESPONSE

How do you square all this with the Code of Judicial Conduct? I don't know. I reached out to the folks at Texans for Public Justice, which tracks "the influence of money and corporate power in Texas politics." They couldn't tell me how a judge could campaign the way Justice Willett does while still complying with the Code. But they sent me a link to a fascinating 2008 piece which chronicled just how much campaign money all the Texas High Court justices received from the "oil, gas, electrical and chemical industries" which then benefited from the Court's pro-corporate, anti-employee decision in Entergy Gulf States v. John Summers.

I also reached out to an organization called the Texas Center for Legal Ethics. The Center claims its mission is to "educate lawyers, law students, the judiciary and the public on professional ethics and the highest standards of professional behavior" and to "educate all persons regarding the rule of law and the roles of lawyers and judges in the Texas system of justice." Guess who is listed as a "liaison" to the Center? Justice Willett. But no one there was able to answer my questions, either.

Eventually, I was steered to Seana Willing, the executive director of the Texas State Commission on Judicial Conduct. This is the state office which tracks complaints against judges and generally handles ethics questions about their work on the bench -- and, sometimes, their life off it. I asked Willing if she sees many citizen complaints these days about judicial campaign advertisements. She responded:

From time to time, but not as often as one might think, we do receive complaints based on judicial campaign advertisements. Usually, the complaint relates to the truthfulness, or lack thereof, of the message under Canon 5(1)(ii) or endorsement issues under Canon 5(2). I have not seen one alleging a Canon 5(1)(i) violation in some time. That doesn't mean that there are no judicial candidates out there making campaign statements that come close to the line (or may even straddle it).

However, unless it's an express pledge or promise (i.e., "If elected to the bench, I promise to always rule in favor of ..."; "If you elect me as judge, I pledge that I will never grant bail to ..."), it becomes problematic to try to enforce this canon since so much campaign speech is constitutionally protected. Attempts to sanction a judge or judicial candidate for implied statements that simply appear to be pledges or promises may not withstand the strict scrutiny standard needed to overcome First Amendment protections (especially if challenged in the federal courts).

I also asked Willing if there had ever been a Texas state court ruling exploring the relationship between Canon 5 of the Judicial Code and judicial campaign advertisements. She responded:

I could only find 1 state court opinion that relates to campaign advertisements, and it pre-dates the 2002 United States Supreme Court decision in Republican Party v. White, so it may not have much precedential value. In case you would find it instructive, the cite is Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995). It's really about the standard for recusal or disqualification for judges when their impartiality is called into question because of statements made in a political ad.

There is also 1 Texas federal court opinion that discusses the old Canon 5(1) just prior to the amendments made by the Texas Supreme Court, which eliminated the "Announce Clause," which had just been found to be unconstitutional by the US Supreme Court in the White decision.  That cite is Smith v. Phillips, 2002 U.S. Dist. LEXIS 14913 (August 6, 2002).

So there you have it. It's not what's illegal that's shocking. It's what is legal that is. The Code of Conduct is practically worthless. Texans aren't storming the barricades demanding that their judges act less like politicians. The legal establishment in the state isn't pushing for change. And, even if it were, the Supreme Court has signaled clearly, both in the White case, and in the Citizens United decision, that state efforts to chill political "speech" bear a heavy burden. So a judge in Texas is just like a politician in Texas. No more and no less. Except that judges still operate under an oath to avoid fear or favor in the cases before them.

POSTSCRIPT

So what? Supreme Court Justice Antonin Scalia argued in Republican Party of Minnesota v. White that judicial impartiality has always been a myth. "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason," he wrote. "For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law." This argument, surely, is the backbone behind Justice Willett's eagerness to let everyone know where he stands. He's just putting it out there because the First Amendment says he can.

And, of course, to note that Justice Willett seems to have ignored his ethical requirements to appear impartial to the litigants before him doesn't necessarily prove that he's been partial to one side or another. I'm not accusing him of anything. For that, we have to the Texas Watch Foundation, a non-profit organization "dedicated to fair and open access to the civil justice system for all Texans." The folks at Texas Watch have been watching the state judiciary since 1996 and earlier this year they issued a report titled "Thumbs on the Scale: A Retrospective of the Texas Supreme Court."

The report is startling for many reasons -- including the fact that it demonstrates how much more radical Gov. Rick Perry is than George W. Bush was when it comes to shaping the Texas Supreme Court to mesh with corporate interests. In the decade of civil consumer cases between 2001 and 2010, a decade dominated by Gov. Perry's judicial appointments, Texas Watch found "on average, defendants won an overwhelming 74% of their cases and plaintiffs have won just 22% of the time... Since 2005, consumers have lost an astonishing 79 % of their cases before the Texas Supreme Court."

And what about Justice Willett? Of the six justices appointed to the Texas Supreme Court by Gov. Rick Perry, Texas Watch ranked Justice Willett ranked last in consumer cases. He ruled against corporate interests just 19% of the time.You won't find that statistic on his website, I reckon, but you really don't have to. Everyone in the Lonestar State knows where Don Willett stands on the issues. That's good news for the powerful forces who fund his campaigns and dominate his website. And it's very bad news for everyone else. Want to know why state courts are losing respect and authority? Want to know why judicial independence is on the run. If you are a campaigning judge, don't forget to look in the mirror.


*Until recently that is. Now that the state courts in Texas aren't in play, now that they are dominated by Republican appointees, now that one vote here or there won't likely make the difference in the outcome of a case, the corporate money is flowing to places where state courts are still balanced, states like Illinois, Michigan and Pennsylvania. In Texas, clearly, the battle for the judiciary has already been won by Justice Willett's fellow travelers.

This is the final installment of a three-part series looking at the political and social forces undercutting the authority and integrity of the nation's state courts.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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