Texas Supreme Court Justice Don Willett (Courtesy of the Texas Attorney General's Office)
In early June the American Constitution Society for Law and Policy, the longtime progressive advocacy group, released the results of a landmark study on "the effect of campaign contributions on judicial behavior." The statistics confirmed what former Supreme Court Justice Sandra Day O'Connor and countless other observers of our legal systems have long contended: Judicial elections impair the fair administration of justice by fostering impermissible appearances of impartiality by judicial candidates and judges. In seeking votes, in acting like politicians, judges invariably lose what they ought to prize most: their perceived credibility as neutral arbiters of cases and controversies.
When I read the study, the first person I thought of was Texas Supreme Court Justice Don Willett, a popular and successfully reelected jurist whose campaign-style website I wrote about last year for The Atlantic. Justice Willett, it seems to me, is the poster-child for the results of the ACS study. Indeed, he should have been on its cover. So I reached out to him, asked him to read the ACS study, and to then answer for me a few questions about his perceptions about judicial elections and the role campaign contributions play in them. About a month ago, he graciously complied in a way that was both candid and frightening.
It's not accurate to portray the justice's words as a direct response to the ACS. He was responding as much to me as to it. But if you want to get a sense of the scope of the problem here, and of the mentality that campaigning judges or justices bring to an endeavor that is in inherent conflict with judicial ethics, this exchange is likely as good as you'll get. The thing to remember, as the Justice himself says below, is that he isn't an outlier in the system. Instead, he's playing the system with the skill and the diligence you would expect from a justice. And the voters of Texas keep sending him back to his post.
Here's how the ACS put it in its summary:
Over the past year, a team of independent researchers has collected and coded data on more than 2,345 business-related state supreme court published opinions, which includes opinions from all 50 states during the years 2010 to 2012. The dataset was merged with over 175,000 contribution records that detail every reported contribution to a sitting state supreme court justice over the same period, or dating back to the last time the justice ran for reelection. Data have also been collected on related factors such as individual justice characteristics, ideology, and data about state processes to ensure a complete and robust empirical model for testing and analysis.
The data confirm a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time. [Emphasis mine.]Moreover, the data demonstrate that the empirical relationship between business contributions and justices' voting for business interests exists only in partisan and nonpartisan systems. There is no statistically significant relationship between money and voting in retention election systems.
The data also show that there is a stronger relationship between business contributions and justices' voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party. Because Republican justices tend to be more ideologically predisposed to favor business interests, additional business contributions may not have as large of an influence on them as they do on Democratic justices. Finally, there is a stronger relationship between business contributions and justices' voting in the period from 2010-2012 compared to 1995-1998.
The problem is bad, in other words, and getting worse. From the ACS Report:
With the increase in competitiveness of judicial elections, campaign spending has skyrocketed. State supreme court candidates raised less than $6 million in the 1989-1990 election cycle. For the 2009-2010 election cycle, the most recent cycle for which aggregate data has been compiled, candidates raised more than $38 million, approximately $11.5 million of which was independent in nature. In three of the last six election cycles, candidates raised a total of more than $45 million. Indeed, throughout the 1990s, only $83.3 million was contributed to state supreme court candidates; in contrast candidates raised $206.9 million between 2000-2009.
During the last decade, the flow of campaign contributions has been especially powerful in partisan races. Between 2000-2009, campaign fundraising was three times greater in states with partisan elections; candidates in these races raised $153.8 million across nine states, compared to $50.9 million raised in the thirteen states with nonpartisan elections. Mirroring the increases in direct campaign contributions, the last decade has also seen a dramatic increase in spending on television advertising in judicial races. Candidates and interest groups have realized that television advertising is effective in increasing name recognition and support for favored candidates, or alternatively, attacking their opponents.
I asked the justice the following questions via email:
As a state judge with an active website that encourages campaign contributions what is your initial reaction to the conclusions in this report? Do you disagree with its conclusions or premise? Do you contest the findings? Why should litigants in Texas who do not contribute to your campaigns have confidence in your ability to remain impartial? What would you say to those people who read this report and have doubts about the notion of impartial justice in jurisdictions where campaign contributions play such an important role in determining who becomes (or stays) a judge?
And here was his response -- I have edited it a bit for space but the gist surely is clear:
My website only accepts contributions during campaign season. My last day to fund raise was March 6, 2013, and thankfully I can't raise another penny until summer 2017, when the 2018 reelection campaign begins. State law restricts judicial candidates in terms of when they can fund raise, from whom they can fund raise, and how much they can fund raise.
The ACS study raises difficult and consequential questions, familiar questions that frankly can't be raised enough. 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.