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:
And here was his response -- I have edited it a bit for space but the gist surely is clear:
There is an awful lot to digest here. The justice is saying that he holds his nose while he campaigns for votes by pledging to be "conservative" and by placing the endorsements of men like James Dobson and Foster Friess (and current Texas Attorney General Greg Abbott) on prominent places on his website. (How would you feel, as an atheist, with Justice Willett on your case?) And he is saying that the decidedly pro-business Texas legislature is more to blame than the decidedly pro-business Supreme Court for the decidedly pro-business bent of Texas law. They have reaped what they have sown.
Unfortunately, the ACS was unable to share with me specific data on judicial elections as it relates to Texas. But for context and perspective I thought it would make sense to share Justice Willett's comments with folks who work regularly as this hectic intersection of law and politics. So I asked my colleagues at the Brennan Center for Justice -- specifically Adam Skaggs, Alicia Bannon, and Matt Menendez -- to point out those portions of the justice's response that they found interesting. Here is how Skaggs responded:
So there you have it. The citizens of Texas have made a conscious choice to elect their judges in this fashion. And the state's power brokers are content with the arrangement. The people who lose out in this bargain are those who almost always lose out: The politically powerless, who rarely have a strong voice in the state legislature, now have an even meeker voice on the state Supreme Court. The American ideal is that our courts are the one place in government where money is not supposed to make a difference. But in Texas, money makes all the difference in the world. Don't believe me? Just ask Justice Willett.