An Elected Judge Would Prefer to Bid Judicial Elections Farewell

Texas Supreme Court Justice Don Willett, a successful vote-getter who knows how to win judicial elections, has some dramatically frank opinions to share: He finds these contests “toxic to the idea of an impartial, independent judiciary” and would like to bid them good-bye.

The judge disclosed his views to legal journalist Andrew Cohen of Atlantic online, and they make some of the most intriguing first-person opinion about judicial elections that Gavel Grab has seen for months. Justice Willett’s views are excerpted below.  (He was asked his thoughts about a recent American Constitution Society report; it found a correlation between campaign money from business groups in state judicial elections and state supreme court justices voting in favor of business interests.)

“The ACS study raises difficult and consequential questions, familiar questions that frankly can’t be raised enough. A former Texas Governor, Sull Ross, once said, ‘The loss of public confidence in the judiciary is the greatest curse that can ever befall a nation.’ I don’t disagree. The Texas Constitution, however, mandates a judiciary elected on a partisan ballot. Calling this system ‘imperfect’ is a G-rated description, and I’m intimately acquainted with the myriad drawbacks, and they are plentiful.”

 “I haven’t studied the ACS reports findings or methodology, but I understand 100% the suspicion that donations drive decisions. That skepticism siphons public confidence, and that’s toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn’t happen.”

“It’s also important to underscore that the laws we interpret are enacted by a very business-friendly legislature. My court doesn’t put a finger on the scale to ensure that preferred groups or causes win, but the Legislature certainly does.”

“No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

“I’d be shocked if people didn’t look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system. Hopeful? Yep. Optimistic? Nope.”

Cohen  is a fellow at the Brennan Center for Justice, a Justice at Stake partner organization, and he invited some experts there to discuss Justice Willett’s remarks. The Brennan Center’s Adam Skaggs notes:

“With respect to the basic question of whether money/contributions drive his or his peers’ decisions, while we would not suggest we think he himself is influenced or approaches any cases in bad faith, obviously the public strongly believes there is a correlation — and that perception is itself damaging to the judiciary, whether or not any judges consciously allow the knowledge of contributors to seep into their decision making. Put differently, even if donations don’t drive decisions, the hit to public confidence in the courts (which he repeatedly acknowledges is an issue) is itself a serious problem; more generally, it’s well established that even an appearance of bias itself raises due process concerns.”

Finally, Cohen draws his own conclusion:

“The citizens of Texas have made a conscious choice to elect their judges in this fashion. And the state’s power brokers are content with the arrangement. The people who lose out in this bargain are those who almost always lose out: The politically powerless, who rarely have a strong voice in the state legislature, now have an even meeker voice on the state Supreme Court. The American ideal is that our courts are the one place in government where money is not supposed to make a difference. But in Texas, money makes all the difference in the world. Don’t believe me? Just ask Justice Willett.”

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