Lawyers’ Campaign Contributions Often Don’t Get Judges Thrown Off Cases. So Why Do They Keep Coming Up?
By Angela Morris
Lawyers’ filings that accuse Texas judges of being biased for taking campaign contributions from opposing counsel rarely succeed.
Quite the opposite: Sometimes the accusations anger the judges, who sanction or refer the accusing lawyer for attorney discipline.
So why do lawyers keep filing these arguments?
Here’s a recent example: Houston attorney Scott Newar in late July alleged that the Vinson & Elkins Political Action Committee gave large campaign contributions to four Texas Supreme Court justices this election season while Newar’s appeal was pending.
Vinson & Elkins represents Apache Corp., the opposing party to Newar’s client, Cathryn Davis, a former Apache paralegal who alleged age discrimination and retaliation by an in-house lawyer.
“These contributions create a substantial potential for bias in Apache’s favor, and undermine the public perception of and public confidence in this court’s independence and neutrality,” Newar wrote in his July 28 court filing in Davis v. Apache Corp. “Apache’s petition for review should be denied.”
The Vinson & Elkins Political Action Committee historically has been a large contributor to Supreme Court justices’ reelection campaigns, and has given $245,000 since 2017 to the nine justices’ campaigns, noted the filing.
“Texas’ ‘pay-to-play’ judicial campaign system invariably favors the rich and powerful corporations—like Apache—and their big and well-connected law firms—like V&E—at the expense of poor ‘little people’ like Cathy Davis,” Newar wrote in an email. “It deprives them of their constitutional right to neutral, impartial justice. It needs to be abolished.”
Pat Mizell, a Vinson & Elkins partner who represents Apache, declined to comment.
Vinson & Elkins Partner Harry Reasoner, who is a member of the firm’s political action committee, wrote in an email that the PAC has supported judicial election reform efforts for decades, including a current commission studying the issue now.
“As long as we have our present system, however, we will continue to contribute as we believe lawyers supporting good judges make the system healthier,” Reasoner said. “Under our Texas system, Texas Supreme Court justices must run very expensive statewide campaigns. We believe all lawyers should contribute, so judges will not have to be at the mercy of special interests for support.”
Newar’s arguments will not go anywhere, according to Austin solo practitioner Lillian Hardwick, who practices judicial ethics law and frequently serves as an expert witness in judge recusal proceedings.
“There’s nothing new here,” Hardwick said.
She said that the case that is most frequently cited in these challenges in Texas is Aguilar v. Anderson, a 1993 case by El Paso’s Eighth Court of Appeals, which established that campaign contributions by themselves do not establish a reason for recusal. Another key case is the Texas Supreme Court 1995 ruling in Rogers v. Bradley, which determined that an action of a third party cannot determine the bias or prejudice of a judge, she said.
“The reality is judges are elected, and if judges are elected you’re going to have campaign contributions,” said Hardwick. “Lawyers cast the most informed votes on judges and yes, most campaign contributions come from them.”
But Newar said that he thinks a 2009 U.S. Supreme Court ruling, Caperton v. A.T. Massey Coal Co., backs his arguments because the justices ruled a West Virginia Supreme Court justice should have recused himself because he got campaign contributions from the defendant.
Hardwick said there’s a risk to arguing about campaign contributions in court.
“The lawyers who are filing it—they need to be careful about how they characterize these things, or they may be reported to the State Bar,” said Hardwick.
She explained that Dallas attorney Lin McCraw in the past filed a motion about campaign contributions given to justices on the Fifth Court of Appeals in Dallas who decided his appeal. The justices were furious and reported McCraw to the State Bar of Texas.
“Stripped to essentials, McCraw seeks to exploit the very existence of an elected judiciary as a basis for recusal. Whether favored by judges or not, Texas selects its judges by popular election and requires that they finance this process,” wrote then-Chief Justice Carolyn Wright in the 2018 ruling in McCraw’s appeal. “It has done so for more than a century. Recognizing this reality, Texas courts have spoken definitively and clearly with respect to the effect of campaign contributions on recusal. The mere receipt of campaign funds, in and of itself, without an indication of communication of coordination of the handling of a case, is not a basis for recusal.”
McCraw, who has no public disciplinary history with the Texas Bar, didn’t respond to a call seeking comment before deadline.
‘I personally would not file’
Newar’s motion didn’t ask for recusal but instead urged the justices to deny Apache’s petition for review. But attorneys do often ask judges to recuse themselves because they got campaign contributions from opposing counsel or litigants.
For example, in 2019, 127th Civil District Judge R.K. Sandill of Houston refused to recuse himself just because of political contributions.
There, plaintiffs attorney Arthur S. Feldman, representing Dallas millionaire Al Hill III, alleged that two defendants—Dallas lawyers Lisa Blue and Jeff Tillotson—had given money to Sandill’s campaign shortly after they got sued.
Feldman, a Houston solo practitioner, said that his situation was different. It was a trial court judge who got the contribution, and the possibility of seeing an improperly motivated campaign contribution is more likely there than in an appellate court, he said.
The lawyers had given their money after Feldman had filed the lawsuit, and that made it look improper, the attorney said.
But the lawyers showed they had donated their money to Sandill before they knew the case would be in his court, added Feldman, who thinks that’s why he lost his motion to recuse Sandill.
Feldman said he hadn’t examined Newar’s case and couldn’t comment about it specifically. But he added that since it involved the Vinson & Elkins PAC, funded by attorneys, which frequently contributed to judges, “that’s probably the least offensive, if you ask me.”
“Nobody wants a targeted contribution made for an improper purpose. That is against the rules. The more a contribution looks like that, either because of timing, or amount, or topic, then the more a lawyer should consider filing such a motion,” Feldman said. “The more it looks like a generalized contribution—expected by a PAC that contributes always—the likelihood of success if probably zero or near zero. I’m not sure it would meet the good-faith standard on its own. … I personally would not file such a motion.”