A Rock and A Hard Place

Texas judges are stuck between a rock and a hard place.

The nature of our state’s partisan election system requires judges to raise money to run political campaigns to be elected or re-elected to a seat on the bench. Because judicial campaigns are lower profile than other races on the ballot, few voters know about the judges or are willing to make contributions to their campaigns.

Instead, the natural constituency for judicial fundraising is attorneys and law firms. But the idea of judges raising money from lawyers who have appeared or might appear in their courtrooms leaves a bad taste in many Texans’ mouths. 

By and large, Texas judges are impartial professionals. But even the appearance of this type of conflict can shake Texans’ faith in the fairness of our legal system. 

Texas passed judicial campaign finance reform in 1995 to help ensure judicial campaigns are conducted fairly and ethically. Prior to these reforms, judges could raise unlimited amounts for their election campaigns. Today, individual and law firm contributions to judicial campaigns are limited and subject to detailed reporting requirements.

Even with those regulations in place, Texas law firms continue to shell out big bucks to support judicial campaigns. Over the last 10 years, Texas law firms have contributed $18 million to judicial campaigns, or 37% of total contributions, according to Law360. Their nationwide analysis found that, “seven of the top 10 donor firms on our list are headquartered or have most of their attorneys in Texas, and nine have donated the bulk of their contributions to judges there.” If lawyers do not fund judicial campaigns, who would? The trouble is that the election of judges leaves judicial candidates with no recourse but to raise campaign dollars

We expect our judges to be competent and fair, but we force them into an election system that puts them in an untenable situation. Judges are not politicians. As many of them made clear in legislative testimony earlier this year, they are just as uncomfortable with the trappings of our partisan election system as Texas voters are:

“Polls show that everyone thinks—people, lawyers and even judges themselves—everyone thinks, by overwhelming margins, that political partisanship and campaign contributions affect judges’ decisions. Mostly they are wrong. In almost all of the eight million cases our 3,200 judges decide each year, Texas judges honor their oath and do the right thing. But a few times—and even a few are too many—people’s suspicions are right. Regardless of the facts, that perception mars the sacred face of justice.”

–Texas Supreme Court Chief Justice Nathan Hecht

“The other big surprise to me was the amount of money that was involved in these judicial races and how the citizens that I talked to were offended by the notion that I would be asking lawyers and companies that appear before my court to give me money to stay on the court. They thought that was unfair and unjust. Many of them didn’t have the resources to contribute to judicial campaigns, so I was thinking that this was a very bizarre system.” 

–Former Texas Supreme Court Chief Justice Wallace Jefferson

“My colleagues can tell you what I’ve experienced when I went to international conferences or even national conferences, and that there is a presumption against a Texas judge. When a Texas judge leaves the bench and talks about being an arbitrator, not just in Texas but nationally or internationally, there is a presumption that you aren’t fair because you’ve come out of this system… that was the subject of two 60 Minutes programs called ‘Justice For Sale’ and what has been critiqued in the New York Times as ‘what passes for justice in small Latin American countries run by colonels in mirrored sunglasses.’”

–Former Texas Supreme Court Chief Justice Tom Phillips

It’s time Texas took a hard look at our antiquated system of electing all of our state’s judges. Texas is one of only six states to do so. It’s time we examine whether it’s right to force the men and women we want to administer justice in a competent and impartial manner into a system that forces them to be politicians and to raise campaign funds from interested parties to win elections.