This at-first apparently harmless voter ignorance of the true qualifications of Texas judicial candidates in the partisan electoral process has, along with other insidious factors involved with that process, slowly created, however, a near "crisis" in the paramount issue of the actual fairness and impartiality (in fact and perceived) of our judicial candidates (successful and otherwise) and, more importantly, in the very integrity of our Texas judges.

In a recently decided case, the Majority and Concurring Opinions of the Justices of the United States Supreme Court have pointed out, once again, just how unfair, illogical, corrupt and downright dangerous it has become for the State of Texas (and the remaining 31 other States) to continue the unsavory practice of selecting judges through the process of popular partisan elections.

In the Republican Party of Minnesota vs. Suzanne White, Chairperson of Minnesota Board of Judicial Standards (decided June 27th, 2002)(153 L Ed 2d 694), the majority concluded that the Code of Judicial Conduct in Minnesota, prohibiting candidates for judicial office, including incumbent judges, from announcing their views on virtually all form of disputed legal or political issues, violated the First Amendment's guarantee of freedom of speech.

While the constitutional result in the case is not really very surprising, the Opinion of the Court, particularly the Concurring Opinion of its first female member, Sandra Day O'Connor, continues to point out with alarming clarity some of the ridiculous, predictable and entirely avoidable problems created by the selection of our State judges through partisan elections.

Writing for the Majority, Justice Antonin Scalia noted "obvious tension" between the provisions of Minnesota's Constitution (providing judges be elected) and the Minnesota Supreme Court's placing of restrictions on virtually all forms of speech by the judicial candidates regarding the subjects likely to be of interest to the voters in any such elections.

Noting that this disparity no doubt arose, in part, because of the growing opposition by numerous groups (including the American Bar Association) to the continued use of popular elections to select State judges (citing the ABA Model Code of Judicial Conduct, published in 2000: "Merit selection of judges is a preferable manner in which to select the judiciary," and its Report entitled An Independent Judiciary: "The American Bar Association strongly endorses the merit selection of judges, as opposed to their election…") the Supreme Court concluded that the First Amendment, nonetheless, would not allow the type of broad prohibitions against free speech seen in the Minnesota Code, even if the process of conducting elections of State judges without any such restrictions was admittedly unwise.

Justice O'Connor joined in the Opinion of the Court striking down the offending provisions. Her Concurring Opinion, however, is yet another in a series of powerful and persuasive indictments against the continued practice of conducting partisan popular elections as a way of selecting judges in Texas or in any other State.

O'Connor points out that we all, of course, want to be sure that our judges are truly impartial, in the sense that they are free from any personal stake in the outcome of the cases they decide. Every State in the Union has a compelling interest in ensuring that its judges are not only impartial in fact, but that its citizens also perceive and believe in the impartiality of those judges.

She states: "But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges can not help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects."

O'Connor cites numerous studies and recently published law review articles for her conclusion that the very practice of electing judges undermines the important governmental interest of an impartial and perceived impartial judiciary. She cites a 1994 Article by UCLA Law Professor, Julian N. Eule, in which former California Supreme Court Justice Otto Kaus is quoted as stating that ignoring the political consequences to an elected judge of their visible decisions is "like ignoring a crocodile in your bathtub."

She points out that any hope of success in contested elections in those States that continue to use them entails campaigning and that campaigning in today's world oftentimes requires staggering sums of money.

One July 1, 1998 Report by the ABA revealed that one 1995 candidate for the Pennsylvania Supreme Court raised over $1.8 million in campaign funds and that $2.7 million was spent on the 1986 race for Chief Justice of the Ohio Supreme Court. Another Report by Texans for Public Justice found that 40 percent of the $9.2 million in contributions (things are always bigger in Texas) to seven members of the Texas Supreme Court for their 1994 and 1996 partisan elections "came from parties and lawyers with cases before the court or contributors closely linked to these parties."

Her Opinion refers to a 2001 Article by Cleveland State University Law Professor, David Barnhizer, entitled: "On the Make": Campaign Financing and the Corrupting of the American Judiciary, which relates numerous stories of lawyers who felt their contributions to judicial campaigns directly affected their chances of success before judges to whom contributions were made.

Professor Barnhizer's analysis of the seriousness and the magnitude of the core of the problem is both thorough and chilling: "….the thesis offered here is that the cost of judicial campaigns has reached a level where both candidates and sitting judges are shaping their behavior to attract financial and other support." As a consequence "many judicial candidates are consciously and unconsciously selling their votes on issues.

*** A judge may be fallible and err. But if a judge is unfair- particularly for purposes of self-interest- the heart of the system and its underlying foundation are threatened. *** There can be no question that the single most important source of judicial corruption is created by the need for campaign funding."

Barnhizer quotes Texas' own Chief Justice, Thomas R. Phillips, on the unsavory impact the ever-escalating cost of campaign financing has on judicial candidates (including incumbents) and on the public's perception of a compromised impartiality by reason of the staggering amounts of contributions: "Within the last few years, this has become a national problem and one that has to be looked at nationally, not just in whatever State is having an election at the moment."

Philips is not the first respected jurist from Texas to condemn the election of judges. Former Texas Attorney General and later Texas Supreme Court Chief Justice, John Hill, was for many years and is still a strong advocate for the abolition of the regretful practice that is the election of Texas judges.

O'Connor argues that even if judges are able to refrain from favoring the donors to their campaigns, "the mere possibility that judges' decisions may be motivated by a desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary."

(She cites a 2001 Research survey finding 76 percent of registered voters believe campaign contributions influence judicial decisions and two-thirds believe individuals and groups who give money to judicial campaigns often receive favorable treatment).
It's really as simple as Apples and Oranges.

Politicians in the Legislative and Executive branches of Government (State and Federal) are not required or even expected to be impartial. Their very role in Government is to be advocates for change (within Constitutional limits) in the laws and to be responsive to the social, political, economic or other concerns evidenced to them by those they are elected to be supportive of and partial to.

Oftentimes, regrettably, the most successful of our politicians are those who can excel at raising the volume and clamor of partisan politics (in their campaigns and otherwise) to levels of rancor and hyperbole rarely before seen.

Judges, on the other hand, as members of the judicial branch of Government, are suppose to be required to apply the law impartially to all persons who appear before them, to refrain from deciding a case in which it would be (or might appear to be) in their own financial, political or other "interest" to find for or against one of the parties, to uphold the Constitutional protections of all persons (even where the majority of the population would not choose to do so) and to strictly follow the important legal principle of stare decisis (requiring judges to follow established legal precedent even if it contradicts their own philosophy or feelings on the matter).

The very Oaths of Office they take and the nature of their jobs are supposed to require judges to refrain from using judicial power to advance political or social causes that might otherwise be advanced lawfully and with impunity by other members of the Legislative or Executive branches of Government.

Numerous earlier Supreme Court cases establish that an impartial judge is essential to the concept of providing all court litigants with the form of Due Process of Law guaranteed them by the 14th Amendment to the United States Constitution. In short, when the impartiality of our judges is lost or the public perceives the impartiality of our judges as lost, the very fabric and cornerstone upon which the judicial branch of our State Government rests and depends on for the moral authority to decide the important legal issues entrusted to it is shaken to the core and, unless restored, will ultimately be destroyed.

Nonetheless, self-preservation has always been an important, indeed unwavering, part of human nature. Judges are, after all, only human. As Alexander Hamilton stated: "Power over a man's subsistence amounts to power over his will."

With today's successful media and TV campaigns often costing 10 times (or more) the usually modest annual salaries of even the highest-paid judicial officers in our State, aspiring candidates for these offices as well as our incumbent judges are almost always forced, by necessity, to become what Professor Barnhizer characterizes as "co-conspirators in their own corruption."

The only way for them to successfully raise the large sums of money necessary to win or keep the job is to "play the game" by (1) suggesting and/or overtly telegraphing a willingness on their part to shape their future judicial rulings in favor of the particular ambitions or political leanings of financial supporters, or (2) suggesting and/or implying to financial supporters that decisions they have reached in the past partial to their special interests are at risk without continued financial support.

Barnhizer explains that this form of obfuscated partiality is far more insidious than even overt bribery of a judge in destroying a judge's impartiality and encouraging the public's perception that a judge's favorable vote can be created or continued by the making of campaign contributions.

The history of this problem (forcing judges to act like other non-judicial politicians) is not a new one.

Justice O'Connor reminds us that judicial elections were not always as prevalent as they are today. At the time of the founding of the Union, only Vermont (before it became a State) elected its judges in popular elections.

The first 29 States of the Union adopted methods for selecting judges that did not involve partisan popular elections. Beginning with Georgia in 1812, States began adopting systems calling for judicial elections and from the 1830's until the time of the Civil War this practice (as a part of the Jacksonian movement toward greater popular control of public office) resulted in 22 of the 34 States electing judges. At the beginning of the 20th century, the elected judiciary was becoming increasingly viewed as incompetent and corrupt by reason of the election processes.

As criticism of partisan judicial elections mounted, a widely publicized speech to the ABA in 1906 by Roscoe Pound (one of the great educators of his day and later Dean of Harvard Law School for 30 years, i.e. The Roscoe Pound Institute) contained the following condemnation of the process: "compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench."

In November 2003 I will start my 28th year of law practice in Texas. I have tried civil cases of all varieties literally all over the State. I have represented clients in almost all of the Courts of Appeals and in the Supreme Court of Texas. I have often been astounded by comments from clients, other attorneys, mediators and members of the public that make it painfully clear they believe they and others can and do use the corrupting influences flowing from the election processes to attempt to cause a judge to act in the way they wish in a particular case or on a certain issue or, at least, create fear on the part of a judge that their reelection could easily be placed at risk if they refuse.

My experiences tells me it is no secret that these improper influences exist or what they can do to the objectivity and impartiality of a judge if brought to bear. Those who would and do use them (and their lawyers) will not relinquish the benefits from their use voluntarily. Only the voters of the State of Texas can remove them.

Other States have already chosen to do better.
Beginning with the State of Missouri, several States adopted a modified system of judicial selection known as the Missouri Plan (also referred to as "merit selection.") Under this form of Plan, judges are appointed by a high elected official (usually a Governor) from a list of approved and pre-qualified nominees put together by a non-partisan commission after an application and approval process involving close review of their legal educations, backgrounds, experience in litigation and appellate matters, as well as their prior ethical and professional reputations.

These appointed judges subsequently stand (at the end of their initial term) for unopposed "retention elections" in which voters (in a non-partisan election without campaigns and fund-raising) are simply asked whether the judge should be recalled. If a judge is recalled, the vacancy is filled by a new nomination and appointment from the pool of pre-qualified nominees, not a popular election.

In addition to recall, judges can be removed if they are found to have engaged in judicial misconduct by the State's Judicial Standards Commission (a procedure already in place in most States and in Texas). The Missouri Plan (or some modified version) is currently in use to fill at least some of the judicial positions in at least 15 States.

In contrast, the process of electing our judges in Texas today has no pre-screening process whatsoever. Individuals totally without prior courtroom experience can and often do appear as candidates for judicial offices under circumstances where a pre-screening process would make it impossible for them to receive a nomination to be a judge.

We have, unfortunately, seen examples in Texas where individuals appearing to be devoid of the type of experience, character, temperament or reputation necessary to become a respected judge have found themselves in positions of responsible judicial power by reason of inequities and quirks in our system of election of judges, often to the shock, disgrace and dismay of even those who knew them best.

At the same time, excellent judges with the experience, character, reputation and willingness to continue to serve are oftentimes defeated in general elections for reasons entirely unrelated to qualifications.

Other qualified and respected Texas judges have announced that their growing distaste for the unsavory and dark side of campaign fund-raising (and the "wink-wink" promises and favors it condones) has caused them to abandon their efforts to retain judicial office. Judges of true integrity understandably grow sick of it.

Even the TV campaign ads of judicial candidates (apparently aware of the public's understanding of "the game") overtly suggest this form of favoritism by judges (usually their opponent) by attempting to identify who contributes to their opponent's campaign and the types of issues these special interest contributors are known to advance.

How much more visible do these undeniable symptoms of a serious illness in our judicial system have to get?
Such an alternative Missouri Plan (or some tailor-made Texas version) would go a long way to reduce these significant threats to both judicial impartiality and qualified judges by the continued use of partisan elections.

No process involving human beings will ever be entirely free of problems, and no judge will ever be totally exempt from the possibility of some form of influence from popular or private pressures by reason of their publicized decisions in an open society such as ours. But the present system exacerbates these pressures beyond reason.

I urge all concerned Texans to get involved. They should immediately and persistently make it known to their State Representatives and Senators (and the Governor) that they wholeheartedly support efforts to permanently remove the corrupting influences of politics and special-interest group's money from the important process of selecting and keeping qualified judges in Texas. This will, of course, require the submission and approval of a Constitutional Amendment, first in both houses of the Texas Legislature (a vote of two-thirds is required), then by the majority of voters in Texas. Experienced voters will know that proposed Constitutional Amendments on the ballot in Texas are, to quote my friend and Immediate Past Texas State Bar President, Broadus A. Spivey, "as common as hog-tracks."

The importance of such an audible, persistent and unwavering campaign of support from all of us for these long-needed "repairs" to the overall quality and continued health of the judicial branch of Government in this State would be hard to overstate.

For the honest and law-abiding members of our society to continue to ignore these epidemic, unsavory and corrupting influences will only further erode, and ultimately destroy, the possibility of achieving what should be the only goal for all of us: to have only qualified, respected and impartial judges sitting in the courtrooms of Texas.

The time is now for all Texans, regardless of their political party or position, to unanimously and persistently support the Constitutional Amendment necessary to aggressively subdue, remove and discard, once and for all, this "Crocodile" in the judicial "Bathtub" in Texas.

Texas could only be a better place for it.
Respectfully yours,

Carl David Adams*

CDA/vrc

*Carl David Adams is a solo practitioner in Dallas, Texas, where he has handled civil trial and appellate matters since 1975. He has been Board Certified by the Texas Board of Legal Specialization in Civil Trial Law since 1990. He was the top law graduate in his August 1975 Class at Baylor University School of Law and is a former Notes and Comments Editor of the Baylor Law Review.

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