Tom Phillips, a former chief justice on the Texas Supreme Court, has a strong opinion of the state’s judicial elections. “Of the ways you can elect judges,” he said, “Texas has one of the worst systems.”
In 1988, when he ran for the state’s highest court, he voluntarily capped individual donations to his campaign at $5,000. Today, his law firm — which regularly represents clients before the state Supreme Court — routinely donates tens of thousands of dollars to the campaigns of the justices who preside over those cases.
. . . “Voters insist they want the right to elect their judges,” said Supreme Court Justice Don Willett, who has served since 2005. “Ask them to name one, and they'll likely come up blank. But they want a voice, even as they say that judicial fundraising raises appearance concerns.”
A case that illustrates those concerns is one that former Chief Justice Phillips, now an Austin-based attorney for the law firm Baker Botts, helped argue before his former colleagues.
In 2001, 71-year-old Leonel Garza died of a heart attack after taking the anti-inflammatory drug Vioxx for 25 days. His family sued the drug manufacturer Merck & Co. in what was one of numerous wrongful death lawsuits filed around the country. A district court and a San Antonio appeals court agreed with the family, awarding them nearly $7.75 million in damages.
Merck — which was represented by Baker Botts — appealed to the state Supreme Court, arguing that Garza had a history of heart problems and that there was no proof that the company’s drug caused the heart attack. In August 2011, the court sided with the company.
In the 10 years preceding the decision, justices who sided with Merck in the 7-0 vote received at least $85,000 combined in campaign contributions from the Baker Botts political action committee. Justice Nathan Hecht, who wrote the court’s opinion in the case, received $20,000. Chief Justice Wallace Jefferson received $12,750.
While no one admits to being influenced by a campaign contribution, a relationship between teh two has been found to exist:
In the 1994 Democratic primary between Rene Haas and Raul Gonzalez, the two candidates together spent nearly $4.5 million campaigning. The following year, the Texas Legislature responded by passing the Judicial Campaign Fairness Act, which limited contributions to justices to $5,000 for individuals and $30,000 for law firms.
That measure may have curbed spending, but researchers found it didn't curb influence. Madhavi McCall, a political science professor at San Diego State University, conducted a study of the relationship between judicial decisions and campaign contributions in 530 Texas Supreme Court cases between January 1994 and June 1997. “In every instance,” she said, “the probability of a party garnering votes increases if the party contributed to a given justice’s campaign.”
