Payola Justice: How Texas Supreme Court
Justices Raise Money from Court Litigants
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Conclusions
The Supreme Court of Texas
became the subject of nationwide ridicule in the late 1980s as a result
of its justices taking huge sums of money from parties with business before
the court. Just one current justice, Raul Gonzalez, sat on the court then.
Most of the current justices first ran as "Clean Slate" reformers,
who promised to clean up the court. As incumbents, however, the justices
appear to have become what they set out to replace. Ten years after "60
Minutes" aired its Texas Supreme Court feature, "Justice for
Sale," this report concludes that today's justices continue to sully
the court's reputation by raising millions of dollars from parties and
lawyers who have business before the court.
To be sure, something has changed over the past 10 years: the paymasters
who finance the justices' political livelihoods. During much of the 1980s,
plaintiffs' trial lawyers were investing heavily in members of the Supreme
Court. That court did not decide for the plaintiffs or their contributing
trial lawyers in every case. Nonetheless, that court was widely regarded
as a sympathetic venue for plaintiffs. As this report documents, corporations,
corporate defense firms and business trade groups now finance the campaigns
of the current justices. As with the plaintiffs' bar in its heyday, this
does not mean that corporate defendants and their lawyers prevail against
plaintiffs in every case. Nonetheless, the current court is widely regarded
as a sympathetic venue for defendants.
The analogy invoked in the title of this report, "Payola Justice,"
reflects just this kind of court bias. Forty years ago, when rock and roll
music was first becoming a commercial success, record promoters paid disk
jockeys "payola" money to replay their records repeatedly. This
pay for play could not guarantee a hit every time. But record producers—who
were not in the business of giving away money for nothing—knew that the
practice improved the odds.
The American system of justice, however, must be held to higher standards.
It requires the people to have confidence that the rulings of their courts
are unbiased and impartial. Judges who raise millions of dollars from parties
in their courts continually run the risk that they will squander this confidence.
Nonetheless, the Supreme Court crisis of the late 1990s—like that of the
late 1980s—transcends the personal foibles of individual justices. The
Texas Supreme Court crisis is systemic, representing as it does the collision
of two forces that, taken together, are incompatible with the interests
of justice:
Any meaningful reforms must
overhaul at least one of these two elements.
The Judicial Campaign Fairness Act, adopted by the Texas Legislature in
1995, promised to address the second of these issues: the problems posed
by expensive modern campaigns. As this report indicates, however, those
reforms have failed. This new law narrowed the campaign fundraising window
to a 21-month period surrounding elections, which is when most fundraising
had long been conducted anyway. Contribution limits were set at highly
indulgent levels that candidates are permitted to hit as many as three
times in a single election cycle (in the primary, runoff and general election).
These reforms have allowed the justices who advocated them to continue
to raise millions of dollars from parties with business before the court.
Any significant reform must stop justices from soliciting and receiving
campaign contributions from lawyers, law firms and litigants who have argued
cases before the court or who may do so someday. The only way to halt these
kinds of abuses is to end partisan elections of Supreme Court justices
and to come to terms with the fact that few Texas voters can name a single
Supreme Court justice or candidate. In recognition of this blind spot in
the electorate, the Texas Constitution could be amended to provide for
gubernatorial appointments of justices, subject to Senate confirmation.
Appointed justices could serve for fixed terms or for life—as in the federal
system. To depoliticize this process, the governor could be required to
select appointees from a short list supplied by a broad-based judicial
nominating committee.
Finally, to allow voters to remove the worst justices, appointed fixed-term
justices could be subject to a periodic "yes" or "no"
retention vote. In this case, a "no" vote by the electorate would
trigger a new appointment. Such reforms, if properly designed and implemented,
could end payola justice at the Texas Supreme Court, thereby restoring
public confidence in the court and its rulings.
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