On the one hand, Texans insist on their right to elect their judges (though they can’t name any of us).

My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges.

Justice Don Willett of the Texas Supreme Court [now 5th Circuit] has no trouble winning votes. But here’s why he thinks the whole system is wrong. (2013 Article)

In early June the American Constitution Society for Law and Policy, the longtime progressive advocacy group, released the results of a landmark study on “the effect of campaign contributions on judicial behavior.” The statistics confirmed what former Supreme Court Justice Sandra Day O’Connor and countless other observers of our legal systems have long contended: Judicial elections impair the fair administration of justice by fostering impermissible appearances of impartiality by judicial candidates and judges. In seeking votes, in acting like politicians, judges invariably lose what they ought to prize most: their perceived credibility as neutral arbiters of cases and controversies.

When I read the study, the first person I thought of was Texas Supreme Court Justice Don Willett, a popular and successfully reelected jurist whose campaign-style website I wrote about last year for The Atlantic. Justice Willett, it seems to me, is the poster-child for the results of the ACS study. Indeed, he should have been on its cover. So I reached out to him, asked him to read the ACS study, and to then answer for me a few questions about his perceptions about judicial elections and the role campaign contributions play in them. About a month ago, he graciously complied in a way that was both candid and frightening.

It’s not accurate to portray the justice’s words as a direct response to the ACS. He was responding as much to me as to it. But if you want to get a sense of the scope of the problem here, and of the mentality that campaigning judges or justices bring to an endeavor that is in inherent conflict with judicial ethics, this exchange is likely as good as you’ll get. The thing to remember, as the Justice himself says below, is that he isn’t an outlier in the system. Instead, he’s playing the system with the skill and the diligence you would expect from a justice. And the voters of Texas keep sending him back to his post.

Here’s how the ACS put it in its summary:

Over the past year, a team of independent researchers has collected and coded data on more than 2,345 business-related state supreme court published opinions, which includes opinions from all 50 states during the years 2010 to 2012. The dataset was merged with over 175,000 contribution records that detail every reported contribution to a sitting state supreme court justice over the same period, or dating back to the last time the justice ran for reelection. Data have also been collected on related factors such as individual justice characteristics, ideology, and data about state processes to ensure a complete and robust empirical model for testing and analysis.

The data confirm a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time. [Emphasis mine.]

Moreover, the data demonstrate that the empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan systems. There is no statistically significant relationship between money and voting in retention election systems.

The data also show that there is a stronger relationship between business contributions and justices’ voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party. Because Republican justices tend to be more ideologically predisposed to favor business interests, additional business contributions may not have as large of an influence on them as they do on Democratic justices. Finally, there is a stronger relationship between business contributions and justices’ voting in the period from 2010-2012 compared to 1995-1998.

The problem is bad, in other words, and getting worse. From the ACS Report:

With the increase in competitiveness of judicial elections, campaign spending has skyrocketed. State supreme court candidates raised less than $6 million in the 1989-1990 election cycle. For the 2009-2010 election cycle, the most recent cycle for which aggregate data has been compiled, candidates raised more than $38 million, approximately $11.5 million of which was independent in nature. In three of the last six election cycles, candidates raised a total of more than $45 million. Indeed, throughout the 1990s, only $83.3 million was contributed to state supreme court candidates; in contrast candidates raised $206.9 million between 2000-2009.

During the last decade, the flow of campaign contributions has been especially powerful in partisan races. Between 2000-2009, campaign fundraising was three times greater in states with partisan elections; candidates in these races raised $153.8 million across nine states, compared to $50.9 million raised in the thirteen states with nonpartisan elections. Mirroring the increases in direct campaign contributions, the last decade has also seen a dramatic increase in spending on television advertising in judicial races. Candidates and interest groups have realized that television advertising is effective in increasing name recognition and support for favored candidates, or alternatively, attacking their opponents.

I asked the justice the following questions via email:

As a state judge with an active website that encourages campaign contributions what is your initial reaction to the conclusions in this report? Do you disagree with its conclusions or premise? Do you contest the findings? Why should litigants in Texas who do not contribute to your campaigns have confidence in your ability to remain impartial? What would you say to those people who read this report and have doubts about the notion of impartial justice in jurisdictions where campaign contributions play such an important role in determining who becomes (or stays) a judge?

And here was his response — I have edited it a bit for space but the gist surely is clear:

My website only accepts contributions during campaign season. My last day to fund raise was March 6, 2013, and thankfully I can’t raise another penny until summer 2017, when the 2018 reelection campaign begins. State law restricts judicial candidates in terms of when they can fund raise, from whom they can fund raise, and how much they can fund raise.

The ACS study raises difficult and consequential questions, familiar questions that frankly can’t be raised enough. 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.

On the one hand, Texans insist on their right to elect their judges (though they can’t name any of us). On the other hand, they harbor suspicions about the role of money that ACS chronicles. 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. 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.

In other words, those who allegedly benefit from the current system aggressively favor replacing it. But the status quo is deeply entrenched, and legislatively, the wheels always come off.

I haven’t studied the ACS reports findings or methodology, but I understand 100% the suspicion that donations drive decisions. That skepticism siphons public confidence, and that’s toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn’t happen.

It’s also important to underscore that the laws we interpret are enacted by a very business-friendly legislature. 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. Then those laws come to the courts for interpretation. If the legal playing field is tilted in favor of business, that’s chiefly due to legislative choices, not judicial ones. And when those choices go too far and collide with constitutional guarantees, I’ve voted to strike them down.

No doubt contributions play a huge role in determining political victors and victims, in judicial races no less than in other branches. My name ID hovers between slim and none, and voters know far more about their American Idol judges than their Supreme Court judges. The crass bottom line is that you spend 99 percent of your time raising a colossal fortune that you then use to bombard voters in hopes of branding your name onto a tiny crevice in their short-term memory for a few fleeting moments.

I’d be shocked if people didn’t look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system. Hopeful? Yep. Optimistic? Nope.

A Response

There is an awful lot to digest here. The justice is saying that he holds his nose while he campaigns for votes by pledging to be “conservative” and by placing the endorsements of men like James Dobson and Foster Friess (and current Texas Attorney General Greg Abbott) on prominent places on his website. (How would you feel, as an atheist, with Justice Willett on your case?) And he is saying that the decidedly pro-business Texas legislature is more to blame than the decidedly pro-business Supreme Court for the decidedly pro-business bent of Texas law. They have reaped what they have sown.

Unfortunately, the ACS was unable to share with me specific data on judicial elections as it relates to Texas. But for context and perspective I thought it would make sense to share Justice Willett’s comments with folks who work regularly as this hectic intersection of law and politics. So I asked my colleagues at the Brennan Center for Justice — specifically Adam Skaggs, Alicia Bannon, and Matt Menendez — to point out those portions of the justice’s response that they found interesting. Here is how Skaggs responded:

With respect to the basic question of whether money/contributions drive his or his peers’ decisions, while we would not suggest we think he himself is influenced or approaches any cases in bad faith, obviously the public strongly believes there is a correlation — and that perception is itself damaging to the judiciary, whether or not any judges consciously allow the knowledge of contributors to seep into their decision making. Put differently, even if donations don’t drive decisions, the hit to public confidence in the courts (which he repeatedly acknowledges is an issue) is itself a serious problem; more generally, it’s well established that even an appearance of bias itself raises due process concerns.

Moreover, in a national survey of more than 2000 judges about a decade ago, nearly half of state court judges — 46 percent — believe that campaign contributions have some or at least “a little influence” on their decisions. So his peers are a lot less confident than he is. Finally, the chummy relationships that emerge from the fundraising judges have to do almost certainly create implicit biases, even if judges aren’t consciously shaping decisions to please donors.

Also, even putting aside the way special interests influence judges, he acknowledges a related problem that you need a lot of money in order to run a competitive race. One result of this is that deep-pocketed companies who litigate often — and the lawyers who represent them — have an outsized ability to shape the court’s composition.

No lawyer, no matter how talented, has a legitimate shot at winning a seat on the bench if they can’t perform well in the “wealth primary” — so long before judges are on the ballot for the general public to vote, there’s a preliminary vetting process in which only the donors get to vote. This clearly is likely to skew the bench toward judges likely to be more sympathetic to the donor’s worldviews and priorities.

On a more fundamental level, the disconnect between politician on the campaign trail and neutral arbiter on the bench doesn’t help to educate the public about what judges do and why they are different from politicians. Of course, this is a critique of the system more than any one judge, but it underscores another way in which judicial elections undermine the independence and credibility of the judiciary.

So there you have it. The citizens of Texas have made a conscious choice to elect their judges in this fashion. And the state’s power brokers are content with the arrangement. The people who lose out in this bargain are those who almost always lose out: The politically powerless, who rarely have a strong voice in the state legislature, now have an even meeker voice on the state Supreme Court. The American ideal is that our courts are the one place in government where money is not supposed to make a difference. But in Texas, money makes all the difference in the world. Don’t believe me? Just ask Justice Willett.

Nomination of Don Willett to the  U.S. Court of Appeals for the Fifth Circuit Questions for the Record

When, in your view, is it appropriate for a circuit court to overturn its own precedent?

Fifth Circuit precedent forbids a circuit panel from overruling prior circuit precedent.“It is a well-settled Fifth Circuitrule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or ouren banccourt.”Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5thCir. 2008)

When, if ever, is it appropriate for lower courts to depart from Supreme Court precedent?

It is never appropriate for lower courts to depart from Supreme Court precedent. As my Court recently – and unanimously – noted, “[o]nly the Supreme Court has the ‘prerogative . . . to overrule one of its precedents.” See King Street Patriots v. Texas Democratic Party, No. 15-0320 (Tex. 2017) (quoting Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016)).

In your questionnaire you list yourself as having been a member of the Federalist Society since 1992.

a. Why did you join?

When Justice Kagan was Dean Kagan at Harvard Law School, she was introduced at a Federalist Society event and famously joked, “I love the Federalist Society. But, you know, you are not my people.”

Like Justice Kagan, I admire the Federalist Society’s contribution to the intellectual lives of American law schools and its commitment to open debate. I love ideas and the freewheeling exchange of ideas. I love rollicking good-faith debate on important issues. I love civil and principled give-and-take where competing points of view get their tires kicked.

The Federalist Society is not an echo chamber. Events frequently feature diverse opinions and sharply contrasting views. The Society doesn’t itself take positions on specific legal or policy issues and is open to anyone regardless of political or jurisprudential views.

I joined for largely the same reason I recently went back to school for an LL.M. in Judicial Studies – for the sheer intellectual exhilaration that comes from thinking deeply on important legal issues.

Was it appropriate for President Trump to publicly thank the Federalist Society for helping compile his Supreme Court shortlist?

For example, in an interview with Breitbart News’ Steve Bannon on June 13, 2016, Trump said “[w]e’re going to have great judges, conservative, all picked by the Federalist Society.” In a press conference on January 11, 2017, he said his list of Supreme Court candidates came “highly recommended by the Federalist Society.”

Willett: As a sitting Texas jurist and a federal judicial nominee, I am constrained by both state and federal canons of judicial conduct from opining on political matters. Canon 5, Code of Conduct for United States Judges (“A judge should refrain from political activity”); id. Canon 1 commentary (“The Code is designed to provide guidance to judges and nominees for judicial office.”).

b.  You indicate on your Senate Questionnaire that you have been a member of the Federalist Society since 1992 and on the Board of Advisors for the Austin Lawyers Chapter since 2003.

The Federalist Society’s “About Us” webpage states that, “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.

While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.”

The same page states that the Federalist Society seeks to “reorder[] priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.

It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”

Willett: Until reading your question, I had never seen this statement and am unsure what the Federalist Society means by it.

c. Please list each year that you attended the Federalist Society’s annual conference.

My records indicate I attended the National Lawyers Convention the following years: 2007, 2008, 2009, 2010, 2012, 2013, 2014, 2016, and 2017.

In 2013, the Center for American Progress reported that you received more than $250,000 in campaign contributions from energy companies.

At your hearing, you discussed having advertised your support from conservative leaders when you said, “I am the consensus, conservative choice from every corner of the conservative movement: pro- life, pro-faith, pro-family, pro-liberty, pro-Second Amendment, pro-private property rights and pro-limited government.”

a. Why would those companies donate so much to your campaign?

My twelve-year record on the Supreme Court of Texas is one of unflinching devotion to the Rule of Law, and I have never hesitated to rule against my staunchest supporters when the law was not on their side. I have ruled for energy companies, and I have ruled against them. My vote follows the law – every time –regardless of a litigant’s wealth, status, or power.

b. Why would those leaders lend support to your campaign?

I hope it was because they believed, as I do, that the judiciary is a legal institution, not a political one. My supreme duty is to be an impartial arbiter, not an ideological combatant seeking to gratify a personal agenda. I’ve worked in and around all three branches of government on both the state and federal levels. I know judging. I know policymaking. And I know the difference.

Do you believe it is important that litigants that come before you, and the general public, believe that you will be impartial in all matters on which you sit as a judge?

What steps did you take as a judge to ensure the public appearance of your impartiality when a party before you had financially contributed or otherwise publicly supported one of your campaigns? What steps will you take if confirmed if any of these parties come before you in the future?

Willett: The Texas Code of Judicial Conduct expressly permits judges to solicit campaign funds. To minimize the appearance of impropriety, the Legislature has imposed contribution limits on individuals, PACs, and law firms, limited the time that contributions can be collected, and mandated timely disclosure of donations and expenditures.

I faithfully abide by all ethical guidelines and favor absolute transparency. On my Court, I do not sit on cases where a contributor is a named party.

Moreover, in both of my statewide elections, I chose to adhere to the voluntary expenditure limits in our Judicial Campaign Fairness Act.

If confirmed to the Fifth Circuit, I will carefully evaluate my recusal obligations under the legal standards set forth in 28 U.S.C. § 455, the Code of Conduct for United States Judges, and all other laws, rules, and practices governing recusal determinations.