The Glaringly Obvious Problem With Elected Justices

Guys like me knew this already. But it is disturbing to see it in print. I need not write more…

After $250k in political support from Apache Corp., Texas Supreme Court does a rare double takeLast fall, it seemed that Apache Corp., the giant Houston oil company, had hit a dead end in a long-running legal battle.

A paralegal named Cathryn Davis claimed the company fired her in 2013 for complaining about age and gender discrimination. A jury agreed, awarding $900,000 to her and her attorneys; an appeals court upheld the judgment. The company asked the Texas Supreme Court to review the case; but on Oct. 2, it declined.

Litigants can ask the state’s highest civil court to reconsider such decisions, but it’s a long shot; nearly 98 percent of the time, it refuses, according to research by the Texas Bar. Nevertheless, Apache notified the Supreme Court it intended to ask for a so-called rehearing.

After the company contributed $250,000 in political support to justices seeking re-election, the court changed its mind.

Texas is one of only four states with partisan Supreme Court elections, and Apache’s appeal occurred while two of the nine Republican justices were simultaneously campaigning and making decisions about the company’s case. (In all, four were up for election but two recused themselves from the case because they had worked on Apache v. Davis before it reached the high court.)

Three weeks after the court’s denial of the appeal, Apache donated $250,000 to a newly formed political action committee, Judicial Fairness PAC. The Fortune 600 oil company has given money to political candidates before. But state records show the donation to the PAC dwarfed its previous gifts.

The contribution appears to be just the second Apache has made in a judicial race; the other was for $2,500 and was made nearly a decade ago.

Texas law limits how much PACs can contribute to judicial candidates. Yet there is a loophole: Unlike with direct contributions, there is no ceiling on how much money the groups can spend independently on behalf of candidates.

Over the next several days, the Judicial Fairness PAC spent $750,000 on television and radio ads supporting the incumbent Texas Supreme Court justices, records show. Funded heavily by Texans for Lawsuit Reform, which has contributed lavishly in its efforts to rein in large jury awards, among other aims, the PAC spent a total of $4.5 million supporting the four candidates. They were the only races on which the new organization spent money.

Although the Judicial Fairness PAC funded only the Supreme Court races last year, in the future it plans to participate in judicial races at all levels, said Texans for Lawsuit Reform spokeswoman Lucy Nashed. “As long as Texas continues to use an election system to select our judges, it is imperative that voters be well informed about their choices,” she said.

On Nov. 3, each of the incumbent justices won. Two weeks later, Apache filed its motion for rehearing.

This time, the Supreme Court, upon reconsideration, agreed to hear the case. In June, it sided with Apache and against the jury’s findings, concluding that the company was going to fire Davis before she complained about discrimination. The $900,000 jury award was tossed.

The two justices who heard the case while campaigning are Chief Justice Nathan L. Hecht and Justice Jeff Boyd. Hecht declined to comment; Boyd has not responded to a request for comment.

Texas Supreme Court Chief Justice Nathan Hecht speaking at the Texas Supreme Court in 2018.

Spencer Selvidge for the San Antonio Express News / Spencer Selvidge for the San Antonio Express News

“Apache Corporation contributed to the Judicial Fairness PAC to ensure the Texas Supreme Court continued to be composed of fair, experienced and highly qualified judges,” the company said in a statement, adding that “Apache had no control over how money was spent by the PAC.”

Davis’ Houston attorney, Scott Newar, is unconvinced. The money Apache contributed to the justices while they were considering the appeal “creates the appearance that justice is for sale in Texas and undermines the Texas Supreme Court’s appearance of independence, impartiality and neutrality,” he said.

He said he will ask the court to withdraw its opinion in part because of the contributions from Apache and its law firm, Vinson & Elkins, which donated tens of thousands of dollars more to the justices while the Apache case was pending.

For those who have long campaigned for Texas to change how it selects judges, the case was the latest reminder of the problems in a system increasingly out of step with the rest of the country.

Reformers say in many ways it doesn’t matter even if the contributions had no influence on the justices. They say the appearance of a conflict of interest can be just as damaging. That perception is bound to arise more frequently as free-spending PACs try to influence partisan Texas judicial races, which are projected to become more competitive.

“Imagine you’re a litigant in court and you hear the other side has contributed a lot of money,” said Wallace Jefferson, a former Supreme Court chief justice. “You think, ‘Has my lawyer contributed to this judge?’ It’s a real problem.”

“I’m not going to say justices are bought and paid for,” said Robert Duncan, a former state senator from Lubbock who long has advocated for reforms of Texas judicial elections. “But the optics give plenty of people reason to think they are.”

‘Texas deserves better’

Scholars say proving a specific campaign contribution influenced a judge is next to impossible. “It’s risky to impute too much about subjective motivations, particularly for any individual case,” said Michael Kang, a professor at the Northwestern Pritzker School of Law who has written extensively on the subject.

But, he added, when analyzed as a group, “There’s no question that there’s a significant, predictable relationship between campaign money to judges and subsequent decisions by those judges.”

Kang’s work has shown that state Supreme Court justices favor litigants from their own party in states with partisan elections. Judges also tend to support special interests and businesses from which they’ve received money.

In Texas, much of the campaign cash comes from lawyers and the firms who represent clients before the court.

In 2017, after losing an oil lease case at the state Supreme Court that he’d won at jury trial and on appeal, a Panhandle investor and math whiz named Salem Abraham calculated that 20 percent of the money raised by the high court candidates over the previous decade came from just nine law firms, whose biggest clients won five times more often than clients not represented by those firms.

“This is crap, and Texas deserves better,” said Abraham, who is a political donor himself, though not to judges.

The big law firms respond that of course they win more often. They employ top lawyers who prevail with superior skill, knowledge and experience. Those qualities attract the biggest clients with the most at stake.

As frequent litigants, they note they are in the best position to know and support candidates who will make the fairest and most efficient justices. The largest firms, such as Vinson & Elkins, have political action committees that donate widely.

But fending off the perception that a few white-shoe firms get an extra listen at the high court has long been a challenge in Texas.

Many justices work for those firms before or after their service on the bench. Justice Jane Bland recused herself from the Apache case because she had been Vinson & Elkins’ lead attorney on the matter, writing the petition for review, before Gov. Greg Abbott appointed her to the court in August 2019.

Justice Brett Busby recused himself because he had heard the case as an appellate judge.

In 2001, Texans for Public Justice, a government watchdog, examined the top law firms’ practice of paying tens of thousands of dollars in signing bonuses to Supreme Court clerks while they were still working at the court — potentially on cases involving their future employers.

The persistent ties between law firm support and the justices can be seen in the recent re-election of Hecht, who cannot run for another term because of the age limit for justices, which is 75. Yet state records show attorneys donated $75,000 after his November victory.

Two former chief justices, Jefferson, who served from 2004 to 2013, and Thomas Phillips, chief justice from 1988 to 2004, said such gifts were necessary because the Legislature underfunds the court. If the state’s top jurist doesn’t receive donations, they said, he often must cover office-related expenses out of his own pocket.

To others, donations to a lame-duck candidate from a law firm with a big case pending before the court look like attention-seeking. Apache’s firm gave $15,000 to Hecht after his last campaign while the case was pending.

“What purpose would that serve other than to say, ‘Hey, this is us, we have a case before you?’” said Andrew Wheat, the long-time research director for Texans for Public Justice.

‘Money finds a way’

In 1987, the Texas Supreme Court denied Texaco’s request to review a massive jury award it had been ordered to pay to Penzoil — whose attorneys had donated hundreds of thousands of dollars to the justices. A “60 Minutes” segment on the case was titled “Justice for Sale?”

In response to escalating concerns, in 1995 the Texas Legislature passed the Judicial Campaign Fairness Act, limiting campaign contributions to judicial candidates. Yet such traditional direct contributions now play less of a role, said Douglas Keith, who studies judicial elections at NYU’s Brennan Center for Justice.

He has observed sharp growth in spending by so-called outside groups that don’t have to abide by spending limits.

“Outside groups increasingly see state Supreme Court races as a good investment,” Kang said. “They can affect state policy in a meaningful way without needing to invest in so many races or spend as much money as they would for other branches of government.”

According to the Brennan Center, outside groups spent about $260,000 on Texas’ high court 2018 elections, when three Supreme Court positions were up for grabs. Two years later, the new Judicial Fairness PAC alone spent 17 times that amount on the state’s high court elections.

The groups skirt contribution limits by spending money independently on behalf of candidates instead of giving it to them directly. That “gets around the reforms I’d hoped would be effective,” said Duncan, the former state senator.

Keith said the support typically takes the form of paying for advertising. The law prohibits any coordination between a candidate’s campaign and the outside groups.

But Keith said the line can be fuzzy. Campaigns have posted generic soundless footage of their candidates online, for example, with the understanding that support groups will use it to make ads.

Campaigns also post internal polling data conspicuously highlighting issues important to their voters as a signpost for the outside groups to target their pitches.

Phillips, the former chief justice, said the Judicial Fairness PAC wasn’t the first outside group to play a major role in Texas judicial elections. He predicted that if the more-than-two-decade Republican lock on high court positions weakens and races become more competitive, the state is likely to see more of the same.

“Money finds a way to flow,” he said. “If you dam it up one place, it’s like a river — it finds a way.”

How much is too much?

Last July, when Davis’ attorney, who stood to lose legal fees in the case, saw the volume of money flowing from Apache’s lawyers to the same justices deciding his client’s fate, he decided he needed to say something.

“Apache — through its outside counsel, Vinson & Elkins’ (“V&E”), political action committee — has imperiled Davis’ aforementioned federal and state constitutional rights by making outsized, targeted campaign contributions to four of this court’s justices’ election campaigns while this case has been pending before this court,” Newar wrote. “These contributions create a substantial potential for bias in Apache’s favor and undermine the public perception of and public confidence in this court’s independence and neutrality.”

The company’s attorneys responded that courts have ruled campaign contributions don’t create a conflict of interest. A Vinson & Elkins spokesman added that the firm abides by Texas’ spending limits. Newar noted he wrote the filing before Apache’s large gift to the Judicial Fairness PAC.

How much money judges may accept from a party appearing before them is far from clear, said Richard Briffault, a professor at Columbia Law School who studies judicial campaigns.

In 2009, the U.S. Supreme Court concluded that a coal mining executive had wielded too much influence when he poured millions of dollars into electing a new West Virginia Supreme Court justice, who subsequently voted to overturn a $50 million verdict against the company. Yet the court stopped short of defining how much was too much when it came to campaign contributions.

“It was pretty much an I-know-it-when-I-see-it case,” Briffault said.

As a result, states have struggled to decide when a contribution from interested parties crosses a line. Only six state set hard limits triggering a judge’s recusal. Texas isn’t one of them.

Even those who strongly support reforming Texas’s partisan judicial elections say prohibiting judges from hearing cases involving campaign contributors is difficult. “What if you have a case that’s on the way up and you’ve donated?” asked Phillips. “What if you’re a shareholder in a company that donated” and appear before the court?

“It’s easy to state a rule like that,” he said. “But it’s hard to draw the line.”