Next Tuesday GOP voters will head for the polls (those who have not voted early, that is) to select candidates for the general election ballot in November. By now voters will more than likely have heard from the Governor and Lieutenant Governor, who are advertising heavily despite the fact that no one has a clue about their primary opponents (except maybe for Rick Perry, who is not who some people think he is). They may also have seen TV ads for one or more aspirants for the Office of Attorney General, in which three well-funded candidates are vying for a place in the May primary runoff. Other than that—unless they have viewed a particular viral video featuring a candidate for the Railroad Commission—it’s catch-as-catch-can for everybody else on the ballot with insufficient resources to compete with the big three for airtime.
Two of those under-resourced candidates are running against each other for a statewide office that we would argue is at least as important, if not more so, than the ones getting all the attention. Justice Evan Young, appointed by Governor Abbott to the Texas Supreme Court, late last year, and Dallas Court of Appeals Justice David Schenk are vying for one of the precious nine seats on our highest civil court. But with name ID hovering at or just above a flat line, they might as well be running for the proverbial office of dog-catcher. It’s easy to blow past this fact if you’re a political insider caught up in the excitement of the horserace (we resemble that remark). Unfortunately, for Texas voters who do not take their politics from a feeding tube, they’re stuck with picking between a “Young” and a “Schenk” on a wing and a prayer that either or both of them might be vaguely qualified to make decisions that will affect their lives and businesses for years to come. And once the election is over, they’ll go back to those lives and businesses, probably forgetting for whom they voted (if they did vote in that race) and that there even exists a Texas Supreme Court with immense power over their lives, liberty, and property.
By any objective standard, this is an absurd state of affairs. It does not have to be that way, but thanks to partisan political interests, it is. If you read our previous post on this subject, you already have a good idea of just how misleading the term “judicial election” actually is. But today, we focus on a different aspect of partisan elections for judges that illuminates an even more insidious effect of the current system: the implication that judicial candidates are (1) improperly influenced by campaign contributions from lawyers and law firms who practice before them, and (2) biased in favor of lawyers and law firms (and, by extension, their clients) with whom they practiced law before they got to the Supreme Court. This implication has been raised in the primary and has informed the endorsement of one candidate over the other by several daily newspapers across the state.
It speaks volumes about the bankruptcy of the current system that a candidate for the state’s highest court feels compelled to appear before GOP groups and newspaper editorial boards maligning his opponent for accepting campaign contributions from lawyers and law firms. To make matters worse, this candidate has superb qualifications to serve on the Texas Supreme Court (as does the Governor’s appointee). He should not have to promote his campaign by suggesting that candidates who turn to the only people with a vested interest in the judiciary—lawyers, law firms, and prospective litigants—for money to run a statewide campaign (however stunted by lack of resources) may be beholden to their contributors when they come into their courts. Even if such a suggestion aims at the system as a whole and not the individual candidate, the effect is the same: to sow doubt in voters’ minds about the partiality of certain judicial candidates (well, pretty much all of them), thereby undermining public confidence that people who don’t give money to judges, or whose lawyer didn’t, will get a fair shake in court.
The hyper-partisanship of elections is fine and dandy when candidates clash over ideas and philosophies that undergird public policy choices. But when it bleeds over to the judiciary, the very existence of which is predicated on absolute impartiality and dedication to applying the law and leaving policy to the legislature, it poisons everything it touches. Many judges say that they like the partisan election system because it allows them to get out and meet voters where they live. That can be an undoubted benefit, but there is nothing that would prevent a judge not “elected” under a partisan label from doing that. Indeed, we wonder whether a judge not under the compulsion to ask people for money and then pay it back to the relevant political party for election support would in reality get to know voters better in another setting altogether. Once the judge shows up at a partisan event, the only thing attendees see is an “R” or a “D,” when they ought to see a highly qualified person who will serve them fairly and impartially, R, D, or none of the above, come what may.
What if, as some of the newspaper editorials seem to support, the legislature barred judicial candidates from accepting contributions from lawyers, law firms, and others with a specific interest in matters before the Court? In our view, that would take a bad system to an exponentially higher level of dangerous absurdity. If we are worried about the potential influence of campaign contributions on judges, what would happen if we unleashed independent campaign expenditures of the Citizens United ilk to fill the vacuum—potentially without even the minimum protections of public disclosure of campaign contributors? Such expenditures—from outside of Texas, no less—have shown up in this campaign, and there is no question that displacing properly disclosed political contributions, together with the limitations on amounts that can be contributed to candidates who adhere to the Judicial Campaign Fairness Act, by independent expenditures will introduce God knows what players who will cover their tracks to avoid disclosure of their interests in the particular candidate or court. At least under the current system, we know who the contributors are, and any voter can find that information if he or she wants to. So, in a manner of speaking, those who advocate campaign finance “reform” along these lines is really advocating in favor of secret funding of judicial campaigns. So, please, let’s drop that shibboleth and talk about the real issue: how do we ensure that we get the best possible judges with the highest possible level of participation of the public in picking them?
The real tragedy of the race between these candidates is that it is being waged on an entirely false basis that makes voters who are paying attention cynical about the fairness of all courts, not just this one. This is the worst possible attitude that Texans can have toward the third branch of government. Yet candidates for the Texas Supreme Court have no choice but to submit to the system as it is and do what they can to make voters aware of them. They are forced to participate in the very partisan process that degrades public confidence in the institution entrusted to their care and stewardship, not to mention the present and future prosperity and well-being of our society.
Those of us who have been around for a long time remember the 1994 Democratic primary, in which an esteemed and experienced jurist, Texas Supreme Court Justice Raul Gonzalez, was challenged by an attorney with substantial financial backing from the plaintiff’s trial bar. After the candidates expended millions of dollars hammering away at each other, Justice Gonzalez survived, but the reputation of the judiciary was seriously damaged. So much so that Lt. Governor Bob Bullock backed an effort to reform the system so that a travesty like that would never happen again. That effort died at the hands of the political parties, but a handful of legislative heroes, most prominently former Senator Robert Duncan, kept it alive. It lives on now in a comprehensive plan proposed jointly by TCJL and Texans for Lawsuit Reform that was introduced in bill form last session and that we intend to pursue again in 2023. We believe that if Texans are given the opportunity to learn about the plan and weigh it against the current system, they will support it. But convincing the legislature to stand aside and let Texans vote on a better way to elect judges is another matter. That, in any event, is what we will endeavor to do. Perhaps the unseemly primary now blotting the public standing of the judiciary will start to open some minds.