Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
The Texas Supreme Court rules in favor of a wealthy developer who donated to the campaigns of every single justice on the court, to the tune of $260,000:
The Texas Supreme Court ruled Friday in favor of Houston homebuilder Bob Perry, the state's most prolific campaign contributor, in a case homeowner advocates say reflects the influence of big money over elected judges.The court overturned an $800,000 arbitration award to Bob and Jane Cull, a retirement-age couple from Mansfield in a decade-long battle over a defective house.
Here's my favorite part:
A spokesman for Mr. Perry hailed the decision and denied that political contributions played any part.
Oh, of course not. Because any admission that it did would be admission of bribery by Perry.
Comments
Bob Perry was the smegwad who donated over $4 million to the "Swift Boat Veterans for Truth" group during the Kerry campaign. His company's subdivisions are all over the freakin' place here.
Posted by: Barn Owl | May 7, 2008 9:47 AM
Well all the justices are Republicans, so at least we know this isn't a case of judicial activism.
Posted by: JDP | May 7, 2008 10:20 AM
Don't these people care about even the appearance of conflict of interest (which, in this case, is clearly more than just appearances)? This should have been given a change of venue to a whole other state!
~David D.G.
Posted by: David D.G. | May 7, 2008 11:52 AM
Out of interest, what happens if everyone on a supreme court (or even a large proportion of judges) recuses themselves from a case? Can it be heard?
Posted by: Ginger Yellow | May 7, 2008 12:00 PM
I disagree with your headline, and present the current supreme court as the problem.
IMHO, this is why "money" should not be given the same protections as "speech" in political campaigns. The sooner we can flush money to politicians out of the system completely, the better.
Posted by: Left_Wing_Fox | May 7, 2008 12:05 PM
Left Wing Fox wrote:
Why, because they sometimes don't rule the way you like? That's not an argument in favor of electing judges. There's no reason to believe that those same judges would not have been elected rather than appointed.
Posted by: Ed Brayton | May 7, 2008 12:15 PM
Ginger Yellow wrote:
That's a good question and I don't know the answer. I presume the lower court ruling would have to stand.
Posted by: Ed Brayton | May 7, 2008 12:19 PM
To answer Ginger's question, although I have forgotten the term (I think it's "doctrine of necessity", but am probably wrong), if following the normal recusal practices would result in a case not being able to be heard at all, the judges or justices will just not follow the normal practices. It happens, or used to happen, mostly in small or sparsely populated jurisdictions or when a big corporation in which lots of people own stock is involved. Courts use this option most often at the trial level and during appeals as of right - courts can generally avoid all appearance of conflict by just refusing to hear discretionary appeals and the equities are balanced differently, since the appellees have already had two bites at the apple.
Posted by: AnneS | May 7, 2008 12:54 PM
Why, because they sometimes don't rule the way you like? That's not an argument in favor of electing judges. There's no reason to believe that those same judges would not have been elected rather than appointed.
No, because appointment merely provides a layer of insulation from the corrupting influence of campaign contributions, it doesn't actually eliminate it. If corrupted politicians with control of the legislature and executive push through ideological purists, they can achieve the same results for their contributors with the appearance of propriety.
I admit, I don't have enough education on the matter to have an opinion whether judges should be appointed or elected. I can see pros and cons to each approach, and don't know enough to weight each of those. I'm just saying that had Bob Perry not been able to contribute financially to their campaigns, he would not have had the influence on the court that he obviously did in this instance.
Posted by: Left_Wing_Fox | May 7, 2008 1:37 PM
Fairly basic political theory lets us know that elections and judges don't belong together. Elections are explicitly political events--they allow the collective judgment of the populace to determine who will make laws and policies.
Law, however, is supposed to be as separate from politics as possible (completely separating the two is, of course, impossible). That is because we don't want the application of law to be based on the characteristics of the individuals, but only on how their actions conform with the law. That is the proper meaning of the phrase "justice is blind"--that it doesn't see color, wealth, gender, etc. When the legal system takes these into account, by definition it is unjust.
We hold that value so highly that we ask justices to recuse themselves just to avoid the mere appearance of impropriety, even if allowing them to judge the case wouldn't really be improper.
But when we elect judges, who must not only accept campaign contributions to fund their campaigns but must also make promises about how they will rule in cases not yet before them (e.g., I'll be tough on drug crimes), their appearance of neutrality and objectivity is destroyed, and we can have no confidence in the administration of justice.
Of all the many odd political structures in state and local U.S. politics, the election of judges is by far the most perverse and damaging.
Posted by: James Hanley | May 7, 2008 1:45 PM
James mentions Fairly basic political theory lets us know that elections and judges don't belong together. Elections are explicitly political events--they allow the collective judgment of the populace to determine who will make laws and policies.
Law, however, is supposed to be as separate from politics as possible (completely separating the two is, of course, impossible). ...
Appointment, by politicians, is simply one other form of not separating the politics from the selection of those that will rule on the law. It doesn't change the fundamental issue that you mention - separating the two is impossible.
Appointment also relies more on some risky priciples, that those who the people selected as representatives can make better decisions than the people themselves can. This flies in the face of the human nature about politicians, in that concentration of power tends toward concentration of corruption. Distributing the power to select the judges amongst the populace with a general election will, according to basic political theory, reduce the likelihood that the judges will be placed through corruptable means. Not eliminate, of course, but reduce.
To explain my point from another angle, when politicians appoint judges, who would be not only insulated from oversight by the populace but must also make promises to those politicians in order to get their position, we can have no confidence in the administration of justice.
Posted by: Q | May 7, 2008 2:37 PM
Left Wing Fox wrote:
But this is a silly argument. You're basically saying that if you can't have perfection - absolute insulation from all possible influence - then there's no reason to take any steps that would provide some degree of insulation. No, appointing judges isn't perfect, but it's a hell of a lot better than electing them. And that insulation from influence, while not perfect, is still quite significant. The key fact is that the judge doesn't have to come back for reelection, which means he doesn't have any need to please political constituents once he is appointed. And history bears this out quite clearly with the number of Supreme Court justices who have ended up making rulings in complete disagreement with the president who appointed them. Earl Warren was appointed by a Republican (in fact, he called that his greatest mistake as president). Harry Blackmun was as well. So was David Souter. It is only because they didn't have to go back to those same presidents for support for reelection that they could act independently and vote their conscience. No, it isn't perfect but it beats the hell out of the alternative.
Posted by: Ed Brayton | May 7, 2008 2:46 PM
As a Texan and a lawyer, I heartily agree! Down here we know that appeals won't get considered near election time, the judges are too busy out raising money.
The old judicial cannons used to admonish lawyers to avoid even the appearance of impropriety. It was a good bench mark and it never should have been abandoned.
The reason we still elect judges is that every time someone suggests that we should try another system, say the Missouri plan, the wealthy interests who contribute to judges start telling voters that [fill in "bad people" here] want to take away their right to vote. Even though a tiny percentage of registered voters actually vote for judges, you can always scare them with the possibility that someone want to take away their rights.
Posted by: Austin Avery | May 7, 2008 2:56 PM
By the way, here is what (I think) is called the Missouri plan (I do know that a version of this is used in Iowa):
When a judicial position opens up, any lawyer can apply to fill the seat (and non-lawyers as well for small claims courts). The applications are submitted to a panel of maybe 20 or 30 people on a sitting panel (not sure how they manage to be selected to be on the panel). Only some percentage of the panel may be attorneys.
The panel then selects their top three candidates and presents the list to the governor, who picks one of the three. Not perfect, but pretty effective insulation from the political process.
Posted by: Austin Avery | May 7, 2008 3:03 PM
Perhaps it's too late to comment on this, but I clicked "Read more" for this...
A spokesman for Mr. Perry hailed the decision and denied that political contributions played any part.
Oh, of course not. Because any admission that it did would be admission of bribery by Perry.
Essentially 3 lines! That had to be put below the fold? Absurd.
Posted by: Jason F. | May 7, 2008 3:32 PM
Judges should be elected by "we the people" but not bought and paid for by wealthy donors. However, until "we the people" stop treating elections as ad campaigns and popularity contests we will continue to get the elected officials we deserve.
Posted by: anevilmeme | May 7, 2008 4:05 PM
Q wrote:
Yes, as I stated, fully separating law from politics is impossible.But you're quite wrong to suggest that appointment is as political as elections. While we can never eliminate the possibility of a judge gaining nomination through bribery or other nefarious means, there are two aspects of appointment that Q glossed over.
First, it is possible to require that the executive's appointments must be approved by a state legislative house. Even when they are in the same party hands, the jealousy between the two separate institutions (read Federalist 51, for more basic political theory) provides some check. When they are in separate hands, it provides even more. Or we could use the Missour/Iowa plan Austin Avery notes--I'm unfamiliar with it, but it sounds reasonable.
Second, appointment can remove a judge from further political influence, assuming they're not appointed for short terms with reappointment allowed. Long fixed terms without reappointment are probably the best available solution. Then the judges can be free to vote their conscience (which, of course, will be affected to a greater or lesser extent by their own political views).
There is no perfect system, but appointment has clearly proved itself superior to frequent election, which keeps judges perpetually exposed to political pressure.
Q's other implied point, that being free from the public's control makes judges more susceptible to being corrupted, is not fully developed. In the case of legislators and executives, that is wholly true, because the power to make and enforce policy, and the opportunity to distribute money, represent the temptations to corruption that they face. The reason federal justices are so rarely (albeit not invariably) corrupt in that sense is because they have so little access to money and the ability to create policies that directly benefit themselves. The only real source of temptation is out-and-out bribery, which is reasonably rare in the justice system.
Posted by: James Hanley | May 7, 2008 4:08 PM
James mentions But you're quite wrong to suggest that appointment is as political as elections.
Actually, I did't say anything about "as political as". I said that the appointment is essentially the same process as election, but with a smaller group. You referred to it as an appointment with approval between the houses for checks and balances. This is still a candidate being voted upon for approval into his position. Fundamentally, the appointment follows similar processes and similar dynamics whether the vote is held by the general population or by the legislators. That is, the candidate for public office must curry favor with his constituents sufficiently well to be able to count on them to provide the position he seeks. A signficant difference, I'm suggesting, is that the power per voter is more diffuse for a general election, but much more concentrated for a legislative approval. Thus, if there is any proclivity for corruption, it would be more likely demonstrated where the power is concentrated - at the appointment and legislative approval.
James, when you raise the point about appointments for long terms, I'll agree that the dyamics does change. Over the long term, the judge is less dependent upon approval from the legislators in order to maintain his position. We could probably agree that long-term judgeships are less prone to corruption those that need to be re-confirmed periodically. However, this has nothing to do with how they get the position in the first place, so is a different variable on the possibility of corruption in a judge. The issues of concentration of power for the initial appointment versus the diffusion of power for a general election would still apply.
You are probably right that my claim about the relationship of a public vote versus the level of corruption was not "fully developed." However, your contributions were contrary to my point. Your contrast of the types of corruption possible to the two branches is unrelated to the points I'm making about the effects of concentrating power. For, whatever corruptive influences a judge can face, I'm arguing that the judges can be exposed to more of those influences when they have fewer, and more powerful, persons to negotiate with in order to get their position.
Take this case for instance. Why would the likelyhood of this situation occuring be significantly less if the judge had been appointed and approved by a legislature? Those legislators stand just as good of a chance of being influenced by Bob Perry. By the politics of the situation, it is reasonable to assuem the legislators will expect some assurances that the judge will protect the legislator's intestests. If the judge is up for re-election eventually, he will then be beholding to whomever will approve his position at that time. Essentially, appointment and approval is a comparable situation, but with fewer players.
If the argument were between long-term positions and short-term positions, instead of between public elections or legislative approvals, I'd have a different position, perhaps more consistent with yours.
Posted by: Q | May 7, 2008 5:33 PM
@Q--
I think you misread (a little) the way judges are appointed and the process.
In states where they are appointed, of course the executive will usually pick a nominee who reflects his views. It's why the courts, contrary to myth, are actually very conservative institutions. Think of civil rights; most of the more expansive views thereof weren't codified by the Supreme Court until late in the game. To give an example, the school desegregation movement had been active for nearly a decade. (The first movement towards desegregation -- or rather the first demands -- were made as early as the 40s). It was also nearly a century after the 14th Amendment was ratified, making nonwhites (in theory) full citizens. In many ways they are behind the curve, rather than ahead of it.
More to the point, while executives tend to pick nominees they like, assuming the local legislature goes along (most states I think have some kind of confirmation process), being appointed means that they don't have to go back to any of those people for the duration of the term (usually life at the higher levels). So yeah, there's indirect political influence, but that;s the point-- it's indirect.
James also missed a small point, tho. Money is an obvious measure of corruption, but there are plenty of ways to use it that don't necessarily benefit the person being "bribed." For example, I might be concerned with the greater power of my party and be quite willing to forego personal payment to get re-elected. So I take big campaign contributions and I can use my position later on to help get a judge I like appointed. So in that sense yes, you could make sure your nominees were so far out that the borderline guys squeak through. Both Bush administrations have done this.
But as James noted, that kind of stuff is pretty indirect. Judges have been corrupted, but usually it's small-time stuff. In those cases the benefit is personal and the legislature or governor who got them appointed isn't involved. After all, why not cut out the middleman? Just take a freakin' bribe and have done with it.
Anyhow, the point is that appointed justices are by almost any measure free-er from political influence of the kind legislators face. That way they can rule in a way that's unpopular.
You say that a judge might be influenced by the people on which he depends for his office. But if they have few options to remove him then it's not much leverage they have. Also, you think it's better to subject them to more popular influence? If it was left to a majority vote black people might still be second-class citizens, since for a long time a large majority of the population thought that was okay. Most Americans don't even understand evolution much less think it should be taught. And a pretty solid majority in some states thought homosexuality should be criminalized -- probably still do. Not a pretty picture.
Just because loads of people decide something doesn't make it right.
Posted by: Jesse | May 7, 2008 8:04 PM
Jesse, I agree with most of your comments. A small point that I think you missed as well stems from your comment of "being appointed means that they don't have to go back to any of those people for the duration of the term (usually life at the higher levels)."
Isn't this true whether appointed or elected? I mean, once seated, and excepting impeachment, most judges are isolated from the day-to-day political pressures. It is while campaigning or negotiating at the start, or at the end to get re-seated, that the stronger political pressures occur.
However, in this case, the fact that the justices were seated for long periods did not insulate them from the politics - it was their deal-making to get the position that appears to be the more significant influence of their apparent corruption. Would a judge that needs to only satisfy one executive and a few legislators be more or less immune to judicial corruption than one approved by the population at large? I'm unaware of any studies (perhaps overlooked), so am still biasing my opinion on the tenets of power theory and how it influences corruption.
Posted by: Q | May 7, 2008 8:42 PM
Q wrote:
Well, all theories--including political theories--must be empirically tested. And I'd say that this theory has been empirically debunked quite thoroughly. The types of cases at issue here simply happen with greater frequency in states with elected, rather than appointed judges.You ask why this case would have been different if the judges had been appointed--it would have been different because the judges wouldn't have been ruling on a case where one of the parties was a campaign contributor. It's not necessarily a direct payback by the judges, but an action to ensure they get that person's campaign contributions in the future. If they had been appointed, they wouldn't have to worry about keeping in that party's good graces.
There may be an exception in the case of retention elections. In some states, judges are initially appointed, but then have to face a retention election, in which they are not opposed, but basically face a vote of confidence by the public. Because these are uncontested, they are usually low profile, and there is little to no campaigning, so little need for campaign contributions. Only rarely, in high profile cases, does anyone pay much attention (Californians might recall Rose Bird, one of those rare exceptions).
Posted by: James Hanley | May 7, 2008 9:06 PM
James, thanks for your comments. Without intending to start a side discussion, I'll mention that from the research I've done on a similar topic - Congressional senators elected by the general population vs Congressional senators elected by the state legislatures (i.e. amendment 17 issues) - it was pretty clear that in that domain, popular elections tended to produce less corruption in Congress. Between those types of elections, the diffusion of power in the populace did seem to have a dampening effect on corruptive influences.
From that background, I extrapolated that filling judicial seats would be similar. However, from your comments, I'll accept that it is quite possible that the dynamics for filling judicial seats are different enough that the resultant corruption differs. The difference could be the result of appointing and then approving for the judges, versus seeking approval from entire bodies of people such as the electorate or legislators for the Senators. I would be interested in references to any research regarding the differences.
Posted by: Q | May 7, 2008 9:40 PM
We elect judges here in North Carolina. And I have never talked to a single one of them that thought this was a good idea, from Supreme Court Justices to District Court Judges. By and large, most lawyers hate the process, too (among other things, we're the ones who are expected to pony up come local elections).
As has been pointed out, politics plays a much smaller role in the judicial world, but the higher the stakes, the greater the temptation. The only time we have appointments here is when there is an open seat. In that case, the local Bar Association will send one or more nominees (of the Governor's party) as candidates. It's sort of a modified version of the Missouri plan mentioned above. For the record, these appointments almost always keep their seats when facing the voters.
Posted by: kehrsam | May 7, 2008 9:59 PM
This is where I think the US is really missing out on a politically neutral civil service. In the Westminster system sensitive appointment functions can be carried out by people who are 2 or 3 steps removed from even the slightest political interference. Ultimately politicians make the decisions, but the Civil Service assures that the politicians at least consider a range of qualified candidates. Plus the decision is officially made by the Governor General, and most politicians can summon up at least a little dignity when making a recommendation to a representative of Her Majesty.
We also have permanent tenure (with a fixed retirement age) for all judges of any seniority.
Posted by: James K | May 8, 2008 3:54 AM
Ginger Yellow asked:
In Texas, if a supreme court justice is recused or disqualified, the chief justice certifies that to the governor, who then appoints a judge from the lower appellate courts or district courts to hear the case. See Texas Government Code section 22.005.
Posted by: Kenneth Fair | May 8, 2008 10:29 AM
Q wrote:
Ah, I see where you're coming from, and I absolutely agree. The republican (small r, not big R) and federalist side of me prefers the idea of state legislative appointments to the Senate, but Q is right that that system became wholly corrupt, and the 17th Amendment was an important corrective.I think the difference is that the opportunities for personal gain for a legislator are so much greater than for a judge (that is, for judges beyond the local level, where graft is much easier), that the temptations to such corruption are much greater. At the federal level, at least, and I think quite likely at the state level, the primary gain for judges is prestige--which while nice to have doesn't tend to promote corruption as much as monetary and power gains do.
I could be wrong on that. But for the past several years I've been pondering why lifetime appointment and removal from political pressure were seen by the founders as OK for federal justices, but not for a president or for legislators, and why the historical record seems to support that. The lack of, or at least much smaller opportunity for, such material gains seems to me to be a big part of the answer. Professional socialization probably plays a role now, as all justices in recent decades have been law-school educated lawyers. Perhaps the biggest difference between the federal, state, and local level is the degree of eminence one must achieve to be seriously considered. Anyone emininent enough to be seriously considered for the Supreme Court would have a high probability of being graft free. That's probably true for the Circuit Courts of Appeal, as well, and--with some distinct diminishment--for the Federal Circuit Courts. State courts would probably be another level down, with less eminence required to be considered and a commensurably lower (albeit not necessarily very low) probability of being graft-free. Local judges, like justices of the peace, often need just have good local connections, rather than any degree of eminence, and I would predict have by far the lowest probability of being graft-free.
Posted by: James Hanley | May 8, 2008 11:41 AM
But this is a silly argument. You're basically saying that if you can't have perfection - absolute insulation from all possible influence - then there's no reason to take any steps that would provide some degree of insulation.
Well yip... that certainly wasn't my intended argument at all. My argument was more that this particular atrocity resulted from the intersection of elected judges and privately funded campaigns. While either my solution (eliminating private financing of elections) or your solution (the appointment of judges) may have eliminated this particular abuse, my own opinion was that public funding of elections was a better solution overall than appointment, which I didn't have a strong opinion about.
That said, the arguments in this thread for the appointment of the judiciary are pretty darn convincing. I still think that public funding of elections is a good idea and would have solved this problem, but I'm much more inclined to agree with you about the benefits of appointed judges as well.
Posted by: Left_Wing_Fox | May 8, 2008 4:19 PM
James K wrote:
Actually, we do have a politically neutral civil service. The vast majority of the executive bureaucracy is civil service. Just the top level people are political appointees, and being temporary (average length of service is under 3 years, I believe), they rarely have much success working against the entrenched bureaucracy (for good or ill).But that doesn't extend to our judiciary--it's solely executive branch.
Posted by: James Hanley | May 9, 2008 7:46 AM