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The Latino Journal offers an interesting analysis of the recent judicial elections in Texas, looking at the relationship between candidates’ “ethnic sounding” names and their performance at the ballot box:

Like the four other Democrats running for statewide judicial offices, [Linda Reyna] Yañez faced serious obstacles: a lack of funding, voter indifference, and the fact that no Democrat has held a statewide office since 1994. But Yañez—along with Court of Criminal Appeals candidate J.R. Molina—faced an additional hurdle: ethnic bias. Some voters, with little else to go on in these low-profile races, appear to have cast a vote against Latino surnames.

The Latino Journal reports that The Texas Observer and Democratic political demographer Leland Beatty studied the election results and used regression analysis to conclude that race accounted for the vote discrepancies between the white and Latino candidates. The Latino Journal offers more evidence of the problem:

A similar bias against ethnic or funny-sounding names may have cost four Harris County judicial candidates, the only Democrats to lose there: Mekisha Murray, Ashish Mahendru, Andres Pereira and Goodwille Pierre. Murray, who is white, says she is frequently assumed to be black. Strangers shouldn’t make that mistake any more; she is changing her first name to “Jane,” mainly to help draw clients to her law practice, she told the Houston Chronicle. Yañez said she has no intention of changing her name. But, she noted, “We’ve got a long way to go in this state.”

As we’ve written here and here, this is not a new phenomenon — names take on much greater importance in judicial elections where voters have little relevant information to guide their decisions.

American Courthouse has tipped us off to a story on Texas Watchdog about a big donor to democratic judicial candidates in Texas — attorney Mikal Watts — who has an interesting view about the effect of his campaign contributions.  A letter Watts drafted to opposing counsel in a pending case argues that the parties should settle because:

[Watts] would prevail in an appeal because his law firm helped finance the campaigns of judges on the state’s 13th Court of Appeals in Corpus Christi. . . . “This court is comprised of six justices, all of whom are good Democrats,” Watts wrote in the letter. “The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm’s heavy support, and is a man who believes in the sanctity of jury verdicts.”

When called upon to explain the letter, Watts said he meant to convey that

the Texas Supreme Court wouldn’t hear the case if he won it on the appellate level. Why does that matter?  Watts explained that the lawyers he takes on typically will boast in their own right, saying, “It doesn’t matter what a jury is going to do because we’ve got nine angry Republicans on the Texas Supreme Court who will take away whatever a jury does.”

Texas Watchdog sums it up like this: “In other words, Watts seems to be saying that if he was bragging about rigging the system, it was only to give the other guys a taste of their own medicine.”

We already know that the public believes that campaign contributions affect decisions in the courtroom.  This incident demonstrates that the belief is shared by at least some of those who contribute to judicial campaigns.  How widespread is that belief? It’s hard to know, but what else explains the continuing escalation in campaign war chests?

We think the right way to solve this problem is to get money out of the process of choosing judges.

The Star-Telegram offers an interesting editorial arguing that last week’s judicial elections demonstrate again why judicial selection reform is needed:  “after the latest round of high-dollar, highly polarized judicial elections, it could be time to be seriously talking again about alternatives to the expensive partisan contests that have been our norm for far too long.”

The editorial goes on to evaluate briefly the different types of selection systems in use across the country.  Here is the assessment of partisan judicial elections — the current system in Texas and Pennsylvania:

Partisan elections provide direct accountability and give voters at least one criterion for evaluating candidates: party affiliation. But judges are supposed to be impartial, not partisan; races are funded largely by those who have a stake in court cases or want to sway the law, and voters often know so little about the candidates that judges can get swept into or out of office based only on party affiliation.

The editorial then comes down in favor of gubernatorial appointments followed by retention elections:

Appointment-retention would avoid the unseemly spectacle of judges raising campaign money, reducing the appearance of special-interest influence. The politics might not be eliminated but would be reduced if candidates were recommended by a bipartisan panel. Retention elections still might result in judges being ousted for unpopular rulings, but public education about the proper role of the judiciary would be needed to counter that type of improper pressure.

Although our favored system looks a little different and would include evalution by a nominating commission, nomination by the governor, confirmation by the Senate and then periodic retention elections, we appreciate the Star-Telegram’s analysis.  We hope that trends in judicial elections across the country will motivate the public to take a close look at how we pick our judges.

Texas is looking at this year’s election results — where 22 of 26 Republican incumbent judges were voted off the bench — and remembering 1994, when all but one democratic incumbent judge were ousted.  The Houston Chronicle reports that while some folks are gearing up for the next round of elections, others are renewing their calls for changing how judges are selected.

Just listen to what current Texas Chief Justice Wallace Jefferson is saying:

This is a strange way to select those who guard our legal rights. . . . It is time to decide whether partisan election is the best means to ensure judicial competence.

Jefferson is joined by former Texas Chief Justice Tom Phillips who long has supported implementing a Merit Selection system for Texas.  According to Phillips, making elections nonpartisan will not solve the problems inherent in judicial electiosn, “including the involvement of special-interest groups, the need to raise money and curry votes, and the lack of voter knowledge of judicial candidates.”

We share the concerns of these Texas leaders and wish them luck.  We recognize that the problems inherent in partisan judicial elections are getting worse, not better, and we hope that Pennsylvania will have the opportunity to choose Merit Selection as a better way to select appellate judges.

An opinon piece in the San Antonio Express-News argues that electing judges just doesn’t make sense.  Bruce Davidson writes:

Good judges hate to raise money and act like politicians.

But the Texas judicial selection system forces them to be politicians, and that creates a major perception problem about Texas justice.

Texas, like Pennsylvania, elects all judges in partisan election contests. We’ve written recently about a new study finding that the majority of campaign contributions in the current campaign come from parties and lawyers who have recently litigated in the state Supreme Court.

The real problems with this system are the partisan election of judges who are supposed to be independent umpires and the flow of contributions that also undermines the perception of unbiased fairness.

Davidson also writes of the lack of information about the candidates available for voters seeking to make informed decisions.  His preferred solution is Merit Selection with retention elections: “Texans could dump bad judges, partisan sweeps would be eliminated and special-interest influence would be reduced.”

We agree that Merit Selection solves the problems inherent in using expensive partisan elections to select judges.  We wish them luck in Texas and hope Pennsylvanians will get to weigh in on whether we should change how we pick our appellate court judges.

A new study by Texans for Public Justice finds that most of the money being contributed to the six candidates currently running for the Texas Supreme Court (three incumbents and three challengers) comes from lawyers and litigants who’ve had cases before the Court in the last three years.  Lawyers and law firms litigating before the Court comprised the biggest group of campaign contributors.

Texas — like Pennsylvania — is one of a handful of states that elects all its judges in partisan elections.  These elections have become increasingly expensive. As the new study demonstrates, the campaigns are funded in very large part by parties doing business before the state Supreme Court.  This only serves to solidify the public perception that money matters and affects judicial decisionmaking.

The study did not analyze the outcomes of the cases at issue, but only the degree to which campaign contributors are involved in Supreme Court litigation.  This focus highlights a major problem with electing judges — that campaign contributions foster a belief that “Justice is for Sale,” and weakens public confidence in the courts.   It doesn’t really matter if campaign contributors are winning more frequently than other litigants; if the public believes they get a benefit, the damage is done.

Recently, we posted about a Texas Supreme Court decision that was drawing headlines because all nine of the justices had accepted campaign contributions from the winning party. Now, another Texas court decision is making news for similar reasons.

An appeals court in Texas recently overturned a verdict against a large drug company. What’s raising eyebrows is the fact that all three of the judges on the panel have taken campaign donations from law firms representing the victorious defendant.

The reaction of the attorney representing the plaintiff underscores the big-money problem with judicial elections. From the AP story:

[Attorney W. Mark Lanier] said the ruling demonstrates that Texas should not have elected judges, asserting it was “outrageous” that all three judges on the appellate panel took campaign contributions from law firms involved in defending Merck.

Would you want to go to court, knowing that the lawyer or law firm you were up against had given money to the presiding judge or judges? It’s understandable that litigants in such circumstances are concerned that campaign contributions may influence verdicts. The problem is not whether or not there is such an influence; the perception that there could be reduces public confidence in the courts and undermines the judicial process.

It’s time for Pennsylvania to remove campaign money from the judicial equation. We can do this by adopting Merit Selection for the appellate courts.

In a May 6th editorial, the Austin American-Statesman discussed a Texas Supreme Court ruling in favor of builder Bob Perry, who had donated thousands of dollars to the campaigns of every justice on the court. The paper concluded that “it is impossible not to be cynical about the poisonous effect of money on justice.”

When thousands of dollars are flowing to judicial candidates, their fairness and impartiality are in doubt. And a ruling like the one favoring a huge donor like Perry undermines the ideal of judicial integrity, even if the decision is on sound legal footing.

The American-Statesman recognizes that court rulings in favor of big campaign donors, no matter how correct or just, are tainted with questions and uncertainty about whether the money influenced the decision. This undermines public confidence in the courts.

Merit Selection solves this dilemma. It gets judges out of the fundraising business. It will help ensure that Pennsylvania’s appellate judges can’t be accused of favoring campaign donors in their decisions. Such accusations have recently been made in West Virginia, and now in Texas. Switching to Merit Selection of Pennsylvania’s appellate judges will make sure that can’t happen here.

A recent ruling by the Texas Supreme Court is getting folks talking about the corrosive effect that judicial campaign contributions have on public confidence in the fairness and impartiality of judges. The court threw out an arbitration award against a Houston homebuilder named Bob Perry, who also happens to be the most prolific campaign contributor in the state. Every justice on the nine member panel has received a contribution from Perry or his family, for a total of over $260,000.

Critics in Texas are speaking out, calling this a case of “big money influencing elected judges.” Are they right? Who knows?

No one can say for sure if campaign money influenced the decision, and it doesn’t really matter. The problem is the perception this process creates. We can understand why a litigant, facing an opponent who has given thousands of dollars to a judge, would not be confident that his or her rights will be impartially protected.

Pennsylvania, like Texas, elects all judges in expensive partisan elections, where lawyers, law firms and organizations with cases in the state courts donate to judicial campaigns. We’ve got to get the money out of the process of selecting appellate court judges.

An opinion piece in The Harvard Crimson points out that four states are in the midst of partisan elections to pick judges for their highest courts. In calling for a move away from partisan election of judges, the author highlights the problem of “judicial candidates [receiving] contributions from firms or attorneys who will potentially present cases, or at least play a role, in their prospective courtrooms”

We agree with the author when she says that we need to reform the way we select judges. Merit Selection gets appellate judges out of the fundraising business. It will help to ensure a fair and impartial judiciary, free from the appearance of bias.