In early June the American Constitution Society for Law and Policy, the longtime progressive advocacy group, released the results of a landmark studyon “the effect of campaign contributions on judicial behavior.” The statistics confirmed what former Supreme Court Justice Sandra Day O’Connor and countless other observers of our legal systems have long contended: Judicial elections impair the fair administration of justice by fostering impermissible appearances of impartiality by judicial candidates and judges. In seeking votes, in acting like politicians, judges invariably lose what they ought to prize most: their perceived credibility as neutral arbiters of cases and controversies. When I read the study, the first person I thought of was Texas Supreme Court Justice Don Willett, a popular and successfully reelected jurist whose campaign-style website I wrote about last year for The Atlantic. Justice Willett, it seems to me, is the poster-child for the results of the ACS study. Indeed, he should have been on its cover. So I reached out to him, asked him to read the ACS study, and to then answer for me a few questions about his perceptions about judicial elections and the role campaign contributions play in them. About a month ago, he graciously complied in a way that was both candid and frightening.
It’s not accurate to portray the justice’s words as a direct response to the ACS. He was responding as much to me as to it. But if you want to get a sense of the scope of the problem here, and of the mentality that campaigning judges or justices bring to an endeavor that is in inherent conflict with judicial ethics, this exchange is likely as good as you’ll get. The thing to remember, as the Justice himself says below, is that he isn’t an outlier in the system. Instead, he’s playing the system with the skill and the diligence you would expect from a justice. And the voters of Texas keep sending him back to his post.