Push to change judge selection endorsedBy Brandi Grissom / Austin Bureau
AUSTIN -- A case the U.S. Supreme Court heard last week could change the way judges in Texas and 38 other states are selected.
Texas has chosen its judges in partisan elections since the 1800s, but a national debate over how campaign money affects judges' decisions and a renewed call for reform from the state's top judge could spur an overhaul of the judicial system.
"Anytime the public perceives that justice can be bought, then there's a problem with our system," said Texas Supreme Court Chief Justice Wallace Jefferson.
Texas judicial campaigns, especially statewide contests for the state's highest civil court, have become million-dollar endeavors largely bankrolled by law firms, corporations and insurance companies that often have cases before the court.
Civil justice advocates, former state Supreme Court justices and some lawmakers have for decades called for reforms. Those pleadings have gone largely unheeded, but proponents of change are hopeful for a different outcome this year.
The U.S. Supreme Court last week heard arguments in the case of Caperton vs. Massey. The question is whether campaign contributions from a litigant to a judge can create a reasonable perception that justice has been swayed.
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia declined to recuse himself from a case in which contributions from the lead defendant accounted for 60 percent of his campaign cash.
Don Blankenship, an officer at A.T. Massey Coal Co., which was appealing a $50 million jury verdict, had contributed $3 million to Benjamin's campaign.
Benjamin cast a vote in a 3-2 court decision that overturned the jury verdict.
The plaintiffs argue that Benjamin's refusal to step aside from a case involving his primary financial backer deprived them of a fair trial.
Benjamin's attorneys counter that the contributions were legal and the appearance of bias does not mean the judge's decision was unfair.
Among the many briefs filed in the case is one from 27 former chief justices and justices from 19 state supreme courts, including former Texas Supreme Court Justice Raul Gonzalez.
The justices said in the brief that, had they been in Benjamin's position, they would have withdrawn from the case because the contribution "created an appearance of impropriety."
"Recusal in such cases is an essential prophylactic to preserve the due process rights of the litigants," the justices wrote. "It is also an important means of preserving public confidence in the judiciary."
Texans for Public Justice, an Austin-based political watchdog group, also filed a brief in the case, urging the court to set campaign standards that would promote judicial reform around the country.
A ruling in the case isn't expected until the summer, but Craig McDonald, executive director of Texans for Public Justice, said Caperton vs. Massey is already having an effect.
"Caperton has made states take a second look at their judicial system," McDonald said. "We'd like to see a fundamental overhaul of the (Texas) judicial selection system."
That's what Texas Supreme Court Justice Jefferson called for in his State of the Judiciary Address to lawmakers last month.
Jefferson is one of nine Republican justices who make up the state's highest civil court. Together, the nine have accepted more than $8 million to conduct statewide elections since 2000, according to the Texas Ethics Commission.
A TPJ report on judicial contributions in the 2008 election showed that the three Texas Supreme Court justices standing for re-election that year raised $1.6 million from January 2007 through June 2008. About 65 percent of the money came from contributors who had business before the court.
Few know better than El Paso District Judge Bill Moody how much money it takes to run an effective statewide judicial campaign.
Moody, a Democrat, ran in 2002 and in 2006 for the Texas Supreme Court. In 2006, he raised more than $100,000 and literally walked from El Paso to Beaumont in an unorthodox campaign that generated statewide media attention.
"We need some kind of reform, and we've needed some for a long time," Moody said.
Reforming the judicial system and a pledge to recuse himself from cases involving his donors were major themes in Moody's unsuccessful campaign.
"There's a perception that it could be influencing, and it just doesn't sit right," he said.
Jefferson said in reality contributions do not affect judges' decisions, but he knows the public perceives it as a problem.
"I would move to an appointment system in which a judge initially comes to the bench through an appointment and then must earn his or her place on the bench through an election, where voters can assess their merits," Jefferson said.
Aside from the public perception problem the money creates, Jefferson said, the current system also results in many extraordinary judges losing their positions. Voters rarely know much about judicial candidates and often vote based on "irrelevant factors" such as a candidate's party affiliation or the sound of his name.
"Judges are being selected not based on merit," he said.
State Sen. Robert Duncan, R-Lubbock, has filed a bill that would implement the type of judicial selection system Jefferson outlined.
The governor would initially appoint judges, and then voters would decide whether they get to stay in their jobs.
The plan isn't perfect, he said. It doesn't take the politics or the money completely out of the judicial system, but it would help.
"What we're trying to do is maintain as much voter input as possible, but . . . minimize the requirement that (judges) have to go out and raise money to stay in office," Duncan said.
This is the eighth time Duncan has filed such a proposal.
For the reforms to happen, the bill must be approved first by two-thirds of the 181 lawmakers in the Texas House and Senate and then by a majority of the state's voters.
This year, Duncan said, he feels some momentum pushing for change.
"Our state continues to be perceived around the country as a state without an independent judiciary," he said, "and we need to change that perception. It hurts us."
Brandi Grissom may be reached at email@example.com; 512-479-6606.
Campaign contributions to Texas Supreme Court justices 2000-2009: Judge Contributions
- Chief Justice Wallace Jefferson: $1,922,335.34
- Justice Nathan Hecht: $1,165,385.51
- Justice Harriet O'Neill: $282,966.62
- Justice Dale Wainwright: $1,119,098.39
- Justice Scott Brister: $638,333.31
- Justice David Medina: $508,386.40
- Justice Paul Green: $843,755.80
- Justice Phil Johnson: $863,208.99
- Justice Don Willett: $1,092,962.03
Source: Texas Ethics Commission Reports.