If you ask judicial scholars who oppose electing, rather than appointing, judges their arguments invariably boil down to one thing. One complication. One glaring problem.
It always comes back to the money.
To get elected, judges need to campaign and campaigning is expensive. The potential for conflicts with potential sources of campaign funding is almost inherent in a system where the only folks really paying attention to judicial races are the trial attorneys who will argue before their courts and the monied special interest groups trying to drive our highest benches in whichever direction they prefer that week.
This challenge is inherent in the history of Texas politics and justice. In the late 80s, it was 60 Minutes that posed a question we’re still grappling with as a state today: in Texas, is justice for sale? More than a decade later, it was an episode of Frontline that took a deeper look into the implications of the money factor on our highest court.
If you look at the data today, more than thirty years after that first report and twenty since the last, it’s hard not to come away with the impression that the more things change, the more they stay the same.
Signal reviewed summaries from dozens of cases before the Texas Supreme Court found extensive track records for some of the largest firms in Texas, as expected. During our search into those cases and decisions, we uncovered the website for Texans for Cash Free Courts, whose data shows that 20 percent of all contributions raised by judicial candidates came from just nine law firms.
Even more striking, their research (a passion project kicked off by Republican megadonor Salem Abraham after he lost a case of his own) found that those firms had a nearly fifty percent chance of winning cases they argued before the Supreme Court.
For average Texans, represented by anyone other than these high dollar firms, your odds of success stand at just 8.7 percent, less than a one-in-ten chance at achieving justice.
Reviewing two decades of campaign finance reports for the four Republican Justices up for re-election to the Texas Supreme Court raised even more questions. We’ve combed through the reports, and so far Signal has identified at least 734 contributions totaling more than $1.22 million from those nine firms to the four Justices.
All four of the justices received at least 100 contributions from attorneys at the firms, and none of the judges received less than $100,000 in total. The largest recipient was Chief Justice Nathan Hecht, who has received over 250 contributions totaling nearly $600,000 and also counts one of the firms as his former employer.
Not that the firm, Locke Lorde, has many complaints about Hecht’s decisions on the bench. We identified 19 cases the firm argued before Hecht and found that, with the exception of amicus briefs and cases where Hecht voted with the minority, he ruled in their favor all 19 times.
What’s more, Hecht put his name on it: he authored nine of the opinions in those cases.
You would be forgiven for thinking Justice Hecht is the only candidate who still enjoys financial support from their former colleagues. But, all three of the other Justices, Brett Busby, Jane Bland and Jeff Boyd, count among their largest contributors firms they used to work for, all of which frequently have business before the court, though few have left a paper trail as evident as Hecht’s.
One notable exception is Justice Bland, who until taking office in September 2019 served as lead counsel on Apache Corporation v. Davis, an employment law case that found her defending the corporation from allegations of age discrimination and retaliation from one of their paralegals.
Bland signed the petition for review in that case in late June. She assumed office September 4th. By July 2020, Davis’s attorneys filed a surreply claiming that her firm had: “imperiled Davis’ aforementioned federal and state constitutional rights by making outsized, targeted campaign contributions to four of this Court’s Justices’ election campaigns while this case has been pending before this Court. 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.”
As of this writing, with Bland and the other Justices just a month from facing voters, that case remains pending.
Photo: Joe Gratz/Wikimedia Commons