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Texas Supreme Court Justice: Electing Judges Is a Really Terrible Idea

There's something fundamentally troubling about seeing a judge on the campaign trail. Take Texas Supreme Court Justice Don Willett, for no other reason than that he has waded into the debate. He knows the system and has successfully held onto his place on the state's highest bench. Voters, assuming they know his name, could learn by visiting his campaign website that he is a "conservative," whatever that means in a courtroom.

They would also learn that James C. Dobson, the evangelical heir to Billy Graham and founder of Focus on the Family -- a man who doesn't much care for gays or their right to equal protection under the law -- endorses him as "the most conservative justice on the Texas Supreme Court. Tea Party patriots, pro-life and pro-family conservatives, limited-government advocates, constitutionalists and any who value American liberty should support Justice Don Willett,"

So, plaintiffs who happen to be gay, liberal or pro-choice might not be blamed for wondering whether Willett's ideologies will preclude a fair hearing. Or, for that matter, whether campaign donations will influence his rulings. There is now evidence that money does have an effect. A study conducted by the American Constitution Society for Law and Policy took nearly 2,500 business-related opinions, coded and merged them with reported campaign contributions.

ACS found that the more campaign contributions the justices received from business interests, the more likely they were to vote in their favor. A justice who gets half of his or her donations from business interests votes for those interests three quarters of the time. Interestingly there was a stronger relationship between voting and business contributions for Democratic justices than for GOP ones, primarily because Republicans are already predisposed to rule on behalf of business. And it's only getting worse. Campaign spending in state supreme court elections has exploded. In the 1989-1990 election cycle, state supreme court candidates raised less than $6 million. They raised more than $200 million between 2000 and 2009.

The Atlantic confronted Willett with these troubling findings, and far from being met with indignation, they found the justice in complete agreement. Which, if you think about it, might be even more disturbing.

"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," he wrote.

Yet if Texans are suspicious about judges who solicit and accept donations from those who may come before the court, that hasn't been enough to overcome the inertia behind this longstanding tradition. And, according to Willett, that resistance doesn't come from where you might think it would.

"I've long favored smart judicial-selection reform -- every member of my court does -- and every legislative session, reform measures are filed ... and then they fail," he wrote. "Both major parties and lots of activist groups in Texas oppose changing the current partisan elected system. Interestingly, the business lobby and tort-reform groups all favor scrapping our current judicial-selection system."

He insists that if ideology creeps into the courtroom, it'll be found in the laws on which his votes must be based -- laws, he says, are "tilted in favor of business."

"My court doesn't put a finger on the scale to ensure that preferred groups or causes win, but the Legislature certainly does. Lawmakers are fond of lawmaking, and the business lobby exerts significant influence on state policymaking."

Whether you buy Willett's assurances or not, he makes an incredibly salient point. Even if, in spite of the endorsements from pols like Texas Attorney General Greg Abbott and business titans like Foster Friess (who basically bankrolled Rick Santorum's presidential run), the Texas Supreme Court is indeed neutral, elections sure as hell don't give that impression, and when it comes to the judiciary, that matters.


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