An Elected Judge Speaks Out Against Judicial Elections

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http://www.theatlantic.com/national/archive/2013/09/an-elected-judge-speaks-out-against-judicial-elections/279263/


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.

***SNIP

The Study

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.]

[Laelth]

1. This is a tough one, but, ultimately, I prefer appointed judges.

Of course, it depends upon who is doing the appointing, but judges who have life tenure through appointment are free to be more fair because they no longer have to stand for re-election.

-Laelth

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2. I agree- particularly if there is a rigorous approval process.

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3. ...

[Sanity Claws]

4. Another effect

I used to practice in Washington State where the judges are elected. The Chamber of Commerce started throwing money at the judicial races around 2000. This meant there were judges on the slate who were going to do the Chamber's biding. But it also meant that incumbent judges came to favor businesses more in their rulings, in an apparent effort to avoid a challenger on the next election who was supported by the Chamber.