Texas Lawyer: Firms, Lawyers Give Generously to Texas Judges

Incumbent justices on Texas' 14 intermediate appellate courts across the state took 72 percent of their campaign money from lawyers and firms to help keep themselves in office, according to a yearlong study by a watchdog group.

Firms, Lawyers Give Generously to Texas Judges

John Council and Kelly Pedone, Texas Lawyer
05-26-2003

Incumbent justices on Texas' 14 intermediate appellate courts across the state took 72 percent of their campaign money from lawyers and firms to help keep themselves in office, according to a yearlong study by a watchdog group.

The report, titled "Lowering the Bar," and released by Texans for Public Justice on May 21, focuses on the 73 justices who sat on intermediate appellate benches as of Jan. 1, 2003, and found that they raised about $4.9 million from plaintiffs and defense firms and individual lawyers between 1997 and 2002.

"The judiciary is dependant on the Bar, who have a direct economic interest in the outcome of cases," Craig McDonald, director of TPJ, says of the report. "It tells us that we need to change our judicial selection system."

The study also found that the total percentage of campaign money that the justices receive from lawyers and firms is on the increase. Justices took 61 percent of their total campaign donations from lawyers in the 1996 election cycle - a percentage that increased to 76 percent in the 2002 election cycle. TPJ's most recent study on the Texas Supreme Court showed that the incumbent high court justices took 48 percent of their campaign contributions from lawyers from 1994 to 1998.

"That number is escalated when you go down the food chain," McDonald says, noting a heavier percentage of lawyer donations to lower appellate courts.

The report and its statistics came as no surprise to several intermediate appellate justices and their lawyer campaign donors. The reason that the appellate justices take so much of their campaign money from lawyers is because few people other than attorneys are interested in judicial elections, several justices say.

"What I'm finding out is that people are caring less. Not attorneys, but the general population," says Richard Barajas, chief justice of El Paso's 8th Court of Appeals. "There's nothing sexy about an incumbent that's been on the bench for 12 years."

Barajas, according to the TPJ report, received 100 percent of his $4,800 campaign donations from lawyers when he ran unopposed in 1996 and 90 percent of his $31,133 in campaign donations when he ran in a contested race last year.

Even though he's the highest-ranking state judge in El Paso, it's hard to find people in his hometown who know what he does for a living, Barajas says.

Barajas says he's not influenced by the money he takes from lawyers, but says he's bothered "by the perception that I would."

"Those are perfectly legitimate questions," he says. "And if more people would ask, we'd do something about it."


Lawyers and Justices

The report found that Houston's Vinson & Elkins was one of the most generous firms with appellate justices, giving them a total of $172,000 in campaign contributions since 1996.

"Under our system, you need money to run a campaign, which can become expensive," says Vinson & Elkins managing partner Harry Reasoner. "I believe the system works because [judges] are supported across the bar."

Vinson & Elkins led the way in contributing to intermediate appellate court races followed by Fulbright & Jaworski with $97,580, according to the report. Although the report does not list the exact amount the firms gave to each judge, it names Scott Brister, chief justice of Houston's 14th Court of Appeals, as the favorite campaign donation recipient of both those firms.

Because those are two of the largest firms in Houston, it stands to reason that they would be the largest contributors, says Brister, who received 85 percent of the $62,236 in his campaign coffers from firms for his 2002 campaign. "I have no idea why they like me so much," he says.

Fulbright & Jaworski spokeswoman Leigh Ann Nicas says the firm typically doesn't comment about its political donations.

The report showed that Houston has one justice who is the least dependant on lawyer money. Tim Taft, a justice on the 1st Court of Appeals, raised no money from lawyers in the $5,222 he banked for his 2000 campaign.

Taft says he made the decision in 1994 to limit the number of individual contributions to $50 during the primary and $200 in the general election. And in 2000, when he was seeking re-election, he decided not to accept any money from attorneys who might appear before him. He raised $5,222, according to the TPJ study, and did not accept any funds from attorneys.

Taft used that policy again when he ran for the Texas Court of Criminal Appeals. He was unsuccessful in the statewide bid.

"I kind of bit off my nose there and got less money," he says. Still, he says he was pleased that he came in second in the Republican primary runoff. CCA incumbent Tom Price beat him.

In Dallas, the report shows that some appellate justices also were heavily dependant on lawyer money on both sides of the bar. For example, 5th Court of Appeals Justice Kerry Fitzgerald received 95 percent of his $36,645 in campaign money from lawyers in 2000, a year when the Dallas defense firm Haynes and Boone was one of his top donors. Fitzgerald received 99 percent of his $31,570 in campaign money from lawyers in 2002, when the Dallas plaintiffs firm Baron & Budd was one of his top donors.

Fitzgerald says he's not even aware who his top donors are.

"I wouldn't have ever have known, if you hadn't told me. That is not my focus," Fitzgerald says. "When you send out a request for funds, you hope that people who think you have integrity and experience would donate to your campaign."

Fred Baron, a partner in Baron & Budd, says his firm wanted to see Fitzgerald keep his job because he's a qualified jurist. Baron says he's not aware if his firm has any cases pending before the 5th Court.

"Quite frankly, the system is flawed," Baron says. "But as long as we are under this system, it's important that we re-elect quality judges to the bench."

George Bramblett, a partner in Haynes and Boone who chairs the firm's political action committee, says firm contributions are the only way to help ensure quality justices keep their seats.

"We tend to give to incumbents," Bramblett says. "And I regard it kind of as a United Way contribution."


Changing the System?

While watchdogs behind the report say lawyers donating heavily to the justices they appear in front of is indicative of a need for election reform, it's not clear whether that will happen anytime soon.

Texas Supreme Court Chief Justice Tom Phillips has championed the cause for switching Texas' 153-year-old system of electing judges to an appointment/retention system. But a bill that would do just that appears to be stuck in the Legislature.

SJR 33, a bill which would allow the governor to appoint all judges, subject to confirmation by the Senate, and then stand for retention elections by the voters at the end of their terms, was passed by the full Senate on April 28. But the bill has not moved past the House Committee on Judicial Affairs since April 29.

Some Republican leaders strongly oppose appointment/retention elections for judges, including Texas Republican Party Chairwoman Susan Weddington, who has taken Phillips - the longest serving Republican on the Supreme Court - to task for supporting the measure.

Republicans currently hold all of Texas statewide elected offices, and judicial election reform has been a divisive issue within the GOP, says Cal Jillson, a political science professor at Southern Methodist University.

Jillson says some Republican leaders like the judicial election system just the way it is - especially because their party has made advances all over the state in judicial races. Other Republicans believe that an appointed system would help them keep GOP judges in areas such as Dallas, where the trend is to vote Democratic, as long as the Republicans hold the governor's office.

And it will be tough to get Republicans and Democrats to agree on such a major issue that effects both parties' hold on the judiciary, Jillson says.

"You do hear Republican Party insiders talk about the need to move to an all appointed judiciary," Jillson says. "But I think when the discussion does begin, that the Democrats would want to make sure it's a nonpartisan board making the appointments rather than the governor or elected officials."

Lowering the Bar: Lawyers Keep Texas Appeals Judges on Retainer

In Lowering the Bar: Lawyers Keep Texas Appeals Judges on Retainer, TPJ analyzes campaign contributions to 73 judges who sat on intermediate state appeals courts in January 2003. These judges raised $6.8 million for 87 winning campaigns to sit on Texas 14 intermediate appeals courts between 1997 and 2002. Led by leading defense and plaintiff firms that have numberous cases in state courts, lawyers and law firms supplied 72 percent ($4.9 million) of all the money in the justices’ war chests.

Read the media release and the full report.

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Lobby Watch: The ‘Big House’ Hits the Statehouse

Rep. Ray Allen likes to mix state business with his private business. The Houston Chronicle and Texas Observer report that Allen, who chairs the House Corrections Committee, is riding herd on legislation to privatize more state prison beds—even as he moonlights as a hired gun for a trade group that represents two companies that run many Texas prisons.
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Houston Chronicle: Owen's record gives reason for pause on judicial post.

Earlier this month, 44 U.S. senators refused to go along on a vote that would have ended a filibuster on the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Good. Owen's judicial record shows less interest in impartially interpreting the law than in pushing an agenda.

Owen's record gives reason for pause on judicial post.

Houston Chronicle Editorial
May 11, 2003

Earlier this month, 44 U.S. senators refused to go along on a votethat would have ended a filibuster on the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. Good. Owen's judicial record shows less interest in impartially interpreting the law than in pushing
an agenda.

The problem is not that Owen is "too conservative," as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

On cases that have reached the Supreme Court in which minor girls have tried to get a judge's permission to avoid having to tell their parents they want to have an abortion, Owen and fellow-Justice Nathan Hecht have tried to set up legal hurdles so high hardly any girl in Texas could qualify.

The complaints against Owen's conduct on the bench run from a penchant for overturning jury verdicts on tortuous readings of the law to a distinct bias against consumers and in favor of large corporations. Some detractors find her demeanor unbecoming of a judge (according to one report, Owen actually turned her back to an attorney arguing before the court).

One troubling case cited by Owen critics involved the Ford Motor Co., which lawyers for a paralyzed teenager sued over a seat belt they alleged was faulty. Owen cited problems with where the matter had been litigated in rejecting the trial jury's verdict favoring the teen, but venue was not even a matter the parties had brought up.

In another case Owen's opinion allowed now-disgraced Enron to avoid paying millions in school taxes to the Spring Independent School District by choosing its own asset valuation date. The company picked a date on which gas prices were at their lowest. Although an appellate court had
made a plausible argument that it was unconstitutional for a state law to give some taxpayers such an unfair advantage over others, Owen's opinion upheld Enron's view.

Democrats showed with the recent confirmation of Bush nominee Edward Prado of San Antonio to the 5th Circuit that they don't want to sink all the president's judicial picks. In fact, the Senate has confirmed 124 judges since July of 2001, choosing to filibuster on only two, Owen and Miguel
Estrada, Bush's pick for a seat on the U.S. Court of Appeals for the District of Columbia.

The public should question why President Bush chooses to put up such ideologically driven nominees. Now, Bush has nominated James Leon Holmes, a former president of Arkansas Right to Life, for a judicial post in that state. This is a man who has written that women should subordinate themselves to their husbands and that rape victims get pregnant with about the same frequency as snow falls in Miami.

The Democrats' stalling on Owen's nomination is political, to be sure. But it also represents a rational desire to prevent the lifetime appointment of a justice who has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law. Anyone willing to look objectively at Owen's record would be hard-pressed to deny that.

Lobby Watch: Few Texas Elected Officials Face Serious Partisan Competition

Eighty percent of the politicians elected to district-level state offices faced little-to-no general-election competition from the opposing major party in November 2002, an analysis of electoral data reveals.
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NYT: G.O.P. Fails in Bid to End Filibuster Against Texas Judge

The battle over judicial confirmations escalated today as Senate Republicans failed to end a filibuster by Democrats blocking a vote on President Bush's nomination of Priscilla R. Owen to a seat on a federal appeals court.

G.O.P. comes up 8 votes short on Owen

May 2, 2003, Friday
By NEIL A. LEWIS, New York Times

WASHINGTON, May 1 -- The battle over judicial confirmations escalated today as Senate Republicans failed to end a filibuster by Democrats blocking a vote on President Bush's nomination of Priscilla R. Owen to a seat on a federal appeals court.
The Democrats said that as a justice of the Texas Supreme Court, Justice Owen has allowed her anti-abortion and pro-business personal views to color her judicial opinions. When Senator Bill Frist of Tennessee, the Republican leader, moved to end the filibuster, he fell 8 votes short of the 60 needed.

Two Democrats, Senators Zell Miller of Georgia and Ben Nelson of Nebraska, joined the 50 of the 51 Republicans who voted today.

The Democrats, who have argued that President Bush is trying to pack the court with conservative ideologues, have now taken the highly unusual step of using filibusters to block two of the president's appeals court nominees. A filibuster blocking a confirmation vote on the nomination of Miguel Estrada, a Washington lawyer, to an appeals court seat in Washington will soon enter its fourth month.

"With Judge Owen, the record is crystal clear,'' said Senator Charles E. Schumer, Democrat of New York. ''In instance after instance, she has not subjugated her own feelings but let them dominate her decision making. That is not what a judge ought to be doing."

Republicans took a starkly different view, though one expressed with the same emotional intensity as their Democratic counterparts.

"I think a great injustice has been done today," said Senator Kay Bailey Hutchison, Republican of Texas. "A wonderful person, an academic judge, a person who has all the qualifications has been turned down today. And most of all, a person who has shown her judicial temperament by the ordeal that she has been through and her demeanor during that ordeal. She has shown class."

At the center of the debate about Justice Owen's fitness for the bench is her dissent from a ruling in Texas interpreting the state's law allowing a teenager to obtain an abortion without notifying her parents if she can show a court that she is mature enough to understand the consequences.

In the dissent, Justice Owen said the teenager in the case had not demonstrated that she knew that there were religious objections to abortion and that some women who underwent abortions had experienced severe remorse.

One of the other justices on the court at the time was Alberto R. Gonzales, now the White House counsel. He wrote that the reading of the law by the dissenters was "an unconscionable act of judicial activism."

Justice Owen has said that Justice Gonzales was not referring to her. Mr. Gonzales has, in interviews, acknowledged he was referring to her and said that his description of her as a judicial activist was merely heated language among judges who disagreed.

While the first floor fight over the Owen nomination was occurring, another judicial nomination drama was being played out across the street in the Judiciary Committee, which was considering President Bush's nomination of J. Leon Holmes to be a district judge in Arkansas.

Senator Orrin G. Hatch, the Utah Republican who is chairman of the committee, did not ask for a vote on approving the Holmes nomination as is customary. Instead, he took the extraordinary step of asking that the committee vote to send the nomination to the full Senate without a recommendation.

Mr. Hatch was apparently concerned that some Republicans on the committee were not completely comfortable with the nomination after disclosures that Mr. Holmes, an ardent opponent of abortion, had made several notable comments about the role of women in society.

In 1997 Mr. Holmes wrote that "the woman is to place herself under the authority of the man." He had also written that abortion should not be available to rape victims because conceptions from rape occur with the same frequency as snow in Miami. Most of the combat over judicial confirmations has been over appeals court judges, the level just below the Supreme Court, and the nomination of Mr. Holmes to the trial court had initially attracted little notice.

But at a committee session last week, Senator Dianne Feinstein, Democrat of California, said that she had never voted against a district court nominee but that she found Mr. Holmes's remarks shocking.

"I do not see how anyone can divine from these comments that he has either the temperament or the wisdom to be a judge," Senator Feinstein said. Senator Hatch said today that he was concerned about some of those remarks and that Mr. Holmes had expressed regret for some. But the most important factor, the senator said, was that many people in Arkansas, including the state's two Democratic senators, Mark Pryor and Blanche Lincoln, still supported the nomination.