I sometimes hear from folks, “Let’s just elect all the judges.”
Or there’s this one: “I don’t want anyone to take away my right to elect judges.”
Understand, these are not people in small communities, where you could argue everyone knows each other, and judicial candidates are recognized—by name, by face, and by personal experience.
No, I’ve heard this sentiment expressed by lawyers in major metropolitan areas. And when I hear it, I always wonder if I’m missing something.
After all, in every election cycle, the most common question every lawyer hears from friends and neighbors is, “Which judges should I vote for on my ballot? Who should I vote to retain? I don’t know any of these people.”
The easy answer is, “Head over to the Judicial Performance Review website, where there’s information about all the judges up for retention.” The harder answer is, why don’t you remember I said that last year and every year you’ve asked me?
So much for yearning to vote for judges.
I’ve written a little about judicial elections this week, and I promised you some insight from a Texas judge today.
You know Texas, don’t you? That’s the place, among others, when jaw-dropping stories about judge campaigning make national news.
At an October 25 Goldwater Institute event, one Texas Supreme Court Justice, Don Willett, offered some unscripted remarks about what it’s like to run for office. Those who hunger to vote for their judges—and lawyers considering throwing their hat into the judge-ballot ring—should take heed.
The event’s topic was constitutional judging. The conversation ranged among the varied opinions on how we define “activist” judges or those who “legislate from the bench.” It’s a hot-button topic and one that often yields more heat than light. In that milieu, the speakers did very well.
(Credit goes to organizer and moderator Nick Dranias of the Institute; Fifth Circuit Senior Judge Harold DeMoss, Minnesota Supreme Court Justice Barry Anderson, California Supreme Court Justice Goodwin Liu, and Texas Supreme Court Justice Don Willett. I tweeted quite a bit from the event here.)
As often happens, an invigorating exchange occurred after the panel discussion was complete. That arose when an audience member asked the elected judges on the panel, “How much does it cost you to run for office? And how do you remain impartial in your rulings when your contributors include lawyers and litigants?”
Boom. Now there are some questions.
I have attended enough lawyer-and-judge events that I expected some vague reassurances in response to those hard questions. But what the audience got was much more candid and unvarnished.
Justice Willett spoke first. When he was sworn into office, he said, “the moment my hand came off the Bible, it rotated 180 degrees to become an open palm,” so that he was ready to solicit campaign funds. He illustrated his point by holding his right hand flat and parallel to the floor, and then rotating it to be flat and parallel with the ceiling.
Texas is not Rhode Island, he reminded the audience. It has 254 counties and two time zones. One week of statewide TV times costs $2 million. And where does that money come from? Judges raise it from among lawyers and others.
Justice Willett was frank about what it’s like to “beg strangers for obscene amounts of cash.” It’s “unseemly” and “vile.”
The “name of the game,” he said, is to “amass a colossal war chest to bombard voters.”
To be fair, Justice Willett said that he appreciates the attempt at judicial accountability. But what citizens get is “a real electoral crapshoot.”
In his remarks, Justice Willett added something that would give succor to those who prefer judicial elections. He said that in merit-selection systems, we still must scrutinize “who picks the pickers.” He said that JPR systems overall favor “big-firm, Bar-friendly folks.”
(I’m not sure that conclusion is correct. It might be helpful for JPR advocates to explore that question. If it’s a myth, they should address it. And if it’s true, they should explore why it is.)
Minnesota’s Justice Anderson also replied to the audience question (in a milder, Minnesota-like way).
“The judiciary is uniquely susceptible to damage from the fundraising and campaign problem. Even if you posit that there is no effect on impartiality, the public and attorneys’ clients don’t understand that.”
“Fair and impartial,” he continued, “is something that benefits all of us.”
Before heading into the weekend, I’ll end with Justice Willett, on what it takes to prepare for the campaign season:
Despite his own misgivings about judicial campaigning, he knows that “when it’s time to campaign, you buckle your chin strap, put on your game face … and raise money.”
Have a great—and impartial—weekend.Follow @azatty