Litigation

Apocalyptic Future for Texas Judicial Elections?

By Nancy Palencia

Will the Lone Star State do away with judicial elections? The recent Citizens United Supreme Court opinion has raised that question for some in Texas.  ?Standing alone, Citizens United does not necessarily condemn states judicial elections, but it hardly stands alone,? according to an commentary in the online Texas Tribune  by writer David Schenck. He calls the Supreme Court opinion the ?the third horseman of the apocalypse for lawyers, judges, and those who favor the direct election of state judges.?

Schenk’s commentary is accompanied by a Texas Tribune news article, called “Odor in the Court,” that examines the impact of Citizens United on that state, which quotes Justice at Stake. Both articles raise the question of whether increased corporate and other special interest spending on judicial elections could erode public confidence in the court system.

According to the Schenck column, Citizens United combines with two earlier high court rulings to undermine the perceived legitimacy of judicial elections:  the Republican Party of Minnesota v. White decision in 2002, and the court’s Caperton v. Massey ruling in 2009. In White, the court found that the First Amendment barred certain limits on what judicial candidates could say while running for office. In Caperton, the Supreme Court declared that the Federal Due Process Clause could prevent a judge from hearing a case that involved a person who had ?a significant and disproportional influence? in placing that judge on the bench.

Schenck predicts that it is only a matter of time before a moneyed special interest challenges Texas laws limiting corporate election spending, pouring millions into state judicial elections.

This time, when the survivor of this election takes the bench with the support of some corporate litigant or wealthy trial lawyer, it won?t just look like someone bought a judge or a favorable decision, it will look like it in primetime and in full public view. Pulling the judiciary out of that ditch may be impossible, or at least take generations. …

These recent Supreme Court decisions spell doom for judicial elections. We should recognize it now and move to some form of merit-based selection for our judiciary while there is still some hope of retaining the public?s confidence in what the founders designed to be the non-political branch of government.

According to the Texas Tribune news article, by Morgan Smith, the underlining problem found in the current judicial elections is the perception of improper influence–the idea that special interests can buy justice.  The article cited two polls by Justice at Stake:

84 percent of Americans believe judges should not hear cases from major campaign contributors, and 74 percent believe campaign contributions have some influence on a judge?s courtroom decisions. The lack of faith for judicial election systems, as Justice at Stake?s polling shows, is heightened when spending in judicial elections is high. According to Justice at Stake, in the last decade, Texas has claimed the fifth-highest spot among all states for Supreme Court candidates fundraising.

“It is important to note that not all participants in the judicial system believe that courts act with a bias because of corporate campaign funding. Lynn Liberato, a Haynes & Boone?s partner who oversees their PAC, stated ?we respect the fact that in Texas we have elections.? Liberato, and other like her, claim that interest in a stable judiciary has led them to “feel a responsibility to participate in the system as it exists.?

However, donations to keep the current judicial system stable have not been equal throughout the different types of courts. A Texas Tribune examination showed that the court of criminal appeals, which serves as the highest criminal court in Texas, raised just more than one-hundredth of what its civil court counterpart did.

Charles Hall, a spokesman for Justice at Stake, states that the disparity in corporate funding is not only found in Texas, but nationally, as well. ?Coincidentally or not, the corporate bottom lines are not affected by whether a bank robber gets ten or twenty years in prison. The bottom lines are affected, however, by whether a large-scale lawsuit is upheld or overruled.?

For more information about Citizens United, visit Justice at Stake’s Supreme Court page, as well as these Gavel Grab articles.

Full post as published by The Gavel on February 17, 2010 (boomark / email).