Jurists from a federal circuit court and state supreme courts spoke at the Goldwater Institute, Oct. 25, 2013.

Jurists from a federal circuit court and state supreme courts spoke at the Goldwater Institute, Oct. 25, 2013.

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 Don Willett, Texas Supreme Court, speaks at the Goldwater Institute, Oct. 25, 2013.

Justice Don Willett, Texas Supreme Court, speaks at the Goldwater Institute, Oct. 25, 2013.

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.”

goldwater-institute signJustice Anderson concluded, “If you’re in the camp that says you don’t want to give up your ‘right’ to elect judges, you should rethink that.”

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.”

Follow Justice Willett’s most excellent tweets here.

Have a great—and impartial—weekend.

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[This story contains corrected copy, identified below.] 

PhoenixLaw Dean Gene Clark

The Phoenix School of Law was the venue for an important event last evening. Amidst a panel of distinguished speakers, the school celebrated the launch of the newest volume of its Law Review.

What? Not enthralled yet? Well, pay attention.

The Phoenix Law Review has reached the grand old age of three—that’s 3! And already, its staff are jumping into issues of significance to the state and its legal community.

The new volume is called the “Arizona Government Issue.” It includes “A History of the Arizona Courts,” written by the Arizona Chief Justice herself, Rebecca White Berch. So right there, it’s worth the price of admission.

Vice Chief Justice Andrew Hurwitz

Her excellent article is surrounded by eight others, only some of which I have begun reading. And that is because I just got a copy last night. In fact, the volume wasn’t even printed until the day before the launch symposium. Now that’s called hitting a deadline!

A law review, as they say, takes a village. But everyone present last night took the time to praise 3L Anthony Tsontakis. It was his idea more than a year ago to publish a volume coincided with the centennial of the Arizona Constitution.

Tsontakis describes himself as “a history kind of guy,” and he says his interest in government and elections grew through clerkships and internships at the Secretary of State’s Office (working with Joe Kanefield (an editorial board member of Arizona Attorney Magazine), at the Arizona Legislature and at the Goldwater Institute. (And another shout out to board member Keith Swisher, an assistant professor at the school and the volume’s faculty advisor.)

Anthony Tsontakis

Anthony Tsontakis says that he contacted 50 to 70 people about possible articles, and then saw them through to publication. Preparations this week required “three consecutive all-nighters” and “53 straight hours” of work (Attention, legal employers! Hard worker on deck).

Tsontakis says that he hopes “the volume will demonstrate that today there are three bona fide law schools in the State of Arizona.”

The work—in the volume and in the launch symposium—paid off. (In fact, when I toiled away on law review as managing editor of the Hastings Comm/Ent, we never had lobster ravioli. All rise for the great catering!)

The evening began with PhxLaw Interim Dean Gene Clark talking about “the magic of the success of this book.” He then introduced Nick Dranias, an attorney with the Goldwater Institute.

[The following three paragraphs contain corrected copy.]

Dranias is one of the volume’s authors. He wrote “The Local Liberty Charter: Restoring Grassroots Liberty to Restrain Cities Gone Wild.” He wins for most evocative title, and for getting things off to a rousing start. In his remarks, he said that the Arizona Legislature “is designed to do one thing well: gridlock and stasis. Well done!”

Nick Dranias, Goldwater Institute

Of course, Dranias was being complimentary, for he appreciates a body designed to “throttle back public passions.” Any body that fosters caution—“looking before you leap”—in terms of legislation is close to the heart of the Institute. 

Dranias was humorous and ironic when he clarified, “As much as we would like to put the pedal to the metal and have the legislative process generate a conservative libertarian utopia, it tends to generate gridlock instead, and by design. But we must yield to temporary evils to secure the benefits of a written constitution.” (his corrected eloquent words, not mine).

Vice Chief Justice Andy Hurwitz was up next, and he spoke from his experience in all three branches of government. He admitted that “I learn something new every time I read our Constitution.” And so did we.

In his wide-ranging remarks, he talked about the constitutional provisions that involve judges, and the history of the State Bar sending names to the Governor for final selection.

He recalled that, when he was Chief of Staff to Gov. Bruce Babbitt, the then-conservative State Bar would send one name only for each opening. But Babbitt wasn’t going to be fenced in, and the Bar later would agree to send more.

Justice Hurwitz also remembered a time when electing judges was the norm—and not always such a good one.

As a young lawyer at the firm later named Osborn Maledon, Hurwitz arrived at court one day on a matter—only to find his opposing counsel already engaged in conversation with the judge.

“Drawing myself up to my full height, I said, ‘Your honor, this is highly improper.’”

Christy Smith, Office of the Governor

But, he laughed, the judge simply replied, “Sit down, sonny. We’re not talking about your case. He’s also my campaign manager—we’re talking about my election.”

The Vice Chief Justice declined to say how the matter turned out.

Finally, Christy Smith spoke. She is Deputy General Counsel to Gov. Jan Brewer, and she encouraged law students in attendance to consider a life in public service. In fact, she believes that there should be more lawyers serving in the Legislature (no word on whether the Governor shares that view).

March 2009: The AZ Constitution

All in all, a momentous evening to honor a great accomplishment. Congratulations, and well done.

Read more about the Law Review of the Phoenix School of Law.

And read our own March 2009 story on the history of the Arizona Constitution, written by Hon. George T. Anagnost.