Texas Deserves Transparently Fair Courts
The judiciary’s authority depends entirely on the public’s confidence in the integrity and impartiality of those who issue its decisions, and – in Texas – that confidence has been shaken. Over my career, spanning almost 30 years, I have repeatedly fought – winning, in many instances – to maintain judicial systems free from outside influence.
I have spent seven years as a justice on the Dallas Court of Appeals, where I have continued to adhere to my oath and the constitutional command for a judiciary that is fair and impartial both in reality and in appearance.
Texas, however, has traditionally struggled with this.
A 2001 study, “Pay to Play: How Big Money Buys Access to the Texas Supreme Court,” examined petitions filed in the Texas Supreme Court and compared them to the contributions made by the law firms who filed them. Those who did not contribute were heard 9% of the time, and firms giving more than $100,000 did disproportionately better. Even in innocent situations it doesn’t look good, and worse, it erodes confidence in a system that has to be above reproach.
The U.S. Supreme Court took note of the problem. In 2009, it held that the federal constitution forbids judges to sit where there is an objective appearance of a “likelihood” of bias, urging states to consider stricter recusal standards. In 2015, it adopted the position urged by myself and other attorneys in the case Dimick v. Republican Party of Minnesota, saying that states can regulate judicial fundraising to promote public confidence in impartiality. And, in 2016, it held that due process concerns arising from a single judge were shared across all judges serving on an appellate court.
Other states responded to this by enacting new ethics rules.
Texas, meanwhile, actually made things worse, removing an established barrier preventing judges from coordinating their campaign activities. As a result, litigants appearing in multi-member appellate courts are left to wonder whether a member might be coordinating the collective effort or directing other members on the interests at stake.
Perhaps unsurprisingly, things haven’t improved. Another study of cases through 2016 again showed a direct correlation between contributions and outcomes, with the same small handful of law firms making the massive donations, along with several more added to the list.
This, combined with the prospect of dark money and PAC contributions, leaves the court and all of the judges on it needlessly open to the awful suggestion that outcomes are driven in response to massive contributions from third parties.
Surely no one person or firm is to blame for this problem or the resulting crisis of confidence, and the overwhelming bulk of Texas business and citizens will come before the court not participating in or perhaps even aware of this problem. However, accountability and action are sorely lacking and long overdue.
That’s why, elected, I will advocate for an efficient system of Justice, including the following ethics rules:
- A recusal from sitting on any case where judges or justices, or any colleague they may have coordinated with regarding any campaign activity, have accepted excessive contributions or other financial assistance in the four years preceding the filing.
- Prohibiting law firms and employees of law firms from giving amounts collectively over what an individual might give in a cycle.
- Requiring lawyers and parties represented by them to disclose any amounts given to a member of the court within the last four years, whether directly or indirectly.
- Forbidding judges or justices from acting as bundlers or coordinating financial or other campaign activities that might be a basis for one judge or justice to influence another’s decision.
I myself have lived by these rules throughout my time as a judge, and I believe that’s something every judicial candidate should be able to say.
These are important steps that will fight back against allegations of “pay for play” and go a long way toward restoring the public’s trust in our judiciary here in Texas. It’s also why I have made it a centerpiece of my campaign as I run for Justice Eva Guzman’s seat on the Supreme Court of Texas.
Review selected RECENT MEDIA COVERAGE, including "The verdict is in. This judge rules" by Dave Lieber for Dallas Morning News.
See Justice Schenck on The Jeff Crilley Show (Feb. 14, 2020)