Since my appointment to fill a vacancy on the Texas Supreme Court, I have been a candidate in three judicial elections, each introducing me to the problematic, often confounding, world of judicial politics. In a judicial campaign, the road to victory begins with the solicitation of money. The “ask” is undignified, and the “give” is fairly compelled. To illustrate, consider one common, if not unavoidable, scenario in the campaign of a state court judge:
Receptionist: I’m sorry, Mr. Jefferson, but Mr. Smith is on the phone with a client. May I take a message? Chief Justice Jefferson: Would you let him know that I am Chief Justice Jefferson of the Supreme Court of Texas? Mr. Smith: Good afternoon, Chief Justice Jefferson. I am so sorry to keep you waiting. My receptionist didn’t recognize your name. Chief Justice Jefferson: No need to apologize, Mr. Smith. I am calling because I am on the ballot this year, and I could really use your help. Mr. Smith: Well, I did not intend to get involved in judicial elections this year, but you are doing a fantastic job as chief justice. Chief Justice Jefferson: No one likes the politics in these elections, but we are compelled to engage. Now, you have appeared in my court many times. You would agree, I hope, that I am always prepared for oral argument? Mr. Smith: Certainly.
Chief Justice Jefferson: Have you noticed an improvement in the court’s disposition rate and its expansion of efforts to give legal representation to the poor?
Mr. Smith: Yes, Your Honor. I have been impressed by the court’s efficiency and outreach.
Chief Justice Jefferson: Mr. Smith, may I count on your financial support so that I may continue to serve the people of Texas?
Mr. Smith: Of course, Mr. Chief Justice. I will take care of that right away.
Chief Justice Jefferson: Thank you, Mr. Smith.
Realistically, what choice did Mr. Smith have? Some states attempt to mitigate this scenario by prohibiting judges from soliciting campaign funds directly or by imposing limits on contributions and expenditures. But judges still know who has contributed, and lawyers are shrewd enough to avoid the risk of incurring a judge’s disfavor. The public complains that donating money to judges corrupts the integrity of the judicial system. Yet in Texas and other states, the public still insists on electing its judges. Recently, one such election attracted the United States Supreme Court’s attention, and the resulting decision—that “the Constitution require[d] recusal”—will undoubtedly be debated for years to come.
Chief Justice Wallace Jefferson, Reform from Within: Positive Solutions for Elected Judiciaries, 33 SEATTLE U. L. REV. 625 (2010).