The Chief Reformer Steps Down

On April 29, state Supreme Court Chief Justice Tom Phillips announced his retirement after 16 years in the position. He was a 38-year-old state district judge in Houston in 1987 when then-Gov. Bill Clements appointed him, transforming Phillips into both the youngest chief justice ever and the first Republican to hold the post in more than a century.

A year later, Phillips asked voters to keep him on during a time of scandal for the state Supreme Court. In 1987, an expose by 60 Minutes called “Justice for Sale†highlighted the close relationship between trial lawyers and the Democratic justices, advancing allegations that campaign contributions were buying decisions. Among states that elect judges, Texas is one of only four in the nation that does not put some institutional barrier between judge and contributor.

Phillips ran as a reformer and, along with several other colleagues on the court, accepted voluntary caps to limit the amount an individual could give to his campaign. Despite subsequent efforts at reform—some of which were successful, such as legislating the still-voluntary campaign caps—allegations of conflicts of interest have continued to haunt the court under Phillips’ tenure.

Today, if anything, Phillips is an even stronger advocate of reform. The chief justice, who will officially step down in September, believes the current system, whereby judges are chosen by partisan election, should be scrapped in favor of a process in which the governor appoints judges who would then face nonpartisan retention elections. Despite active lobbying on his part, last session the Legislature and even Phillips’ own Republican Party rejected his reform proposal.

When he announced his resignation, the failure to advance meaningful reform was cited by the chief justice as one of the primary reasons he decided to step down only two years into his latest six-year term. “The principal reason I ran again is because I thought I could make a real impact on changing the judicial structure,†he told reporters. “The last legislative session convinced me I couldn’t do that.â€

Despite his passion for reform, the chief justice is not without his critics. They point to his role in the very system he opposes. In 1990, for example, in the election for his first full term, he spent more than $2.6 million. Lately, there is a perception that under Phillips the pendulum has simply swung from a trial lawyer-dominated court to one overly controlled by business interests who donate copious amounts of campaign cash. Phillips argues that the perception is fueled in part by an ideological change within the nation over the role of the courts. Still, he vows to continue the fight for reform from his new position as a constitutional law professor at South Texas College of Law in Houston.

Recently The Texas Observer visited with Phillips in his office at the court. Those who know the Chief, as he is called, describe him as “genial,†“brilliant,†“earnest,†“utterly unself-conscious,†and even at times “naive.†Surrounded by his library of rare books of campaign speeches from every president in U.S. history, Phillips talked about reform, the history of the court, and allegations of corruption. Included here are excerpts from that conversation.

Texas Observer: What were you facing as a Republican when you first ran?

Tom Phillips: The normal way that a Supreme Court race had been run in the 1980s was a handful of plaintiff/personal injury lawyers generally selected the candidate they liked best. Most of the large Houston law firms supported that same candidate. Any other candidate, whether an incumbent justice, as they sometimes were, or a challenger, kind of wandered around smaller defense law firms… Only one candidate would have enough money for television. And those TV ads both puffed up that candidate and slammed the other one, and the result was a foregone conclusion. I knew I had to break out of that cycle.

TO: How did you do that?

TP: I was already going to run for the Supreme Court before John Hill announced he was retiring as chief justice. Running the campaign as one branch of the bar versus the other—when the branch I was appealing to was not the branch that was contributing the money—was not the way to win. It had to be broadened to involve the public as a whole. The court had to be more important than just a bar preference exercise… It seemed to me that if I was going to break into the public consciousness about the fact that these judicial races were important and they were not just the result of a caucus of heavy-hitting lawyers on both sides of the docket, then I had to magnify this money and politics connection and say that that was a bad thing for judges.

[Phillips talked about benefiting from a powerful campaign for reform.]

TP: Greater than , was the Texaco PR department. Texaco was extremely exercised about the court’s refusal to take the appeal in Pennzoil versus Texaco, and was beating the drums loudly about the Texas judicial system, which resulted in editorials or adverse articles in The New York Times, The Financial Times, The Economist, and The Wall Street Journal, and lots of other places. There was Judicial Conduct Commission action against some of the judges. widespread perception that some of the judges were simply too close to some of their contributors, whether that was traveling with them or going and drinking every afternoon with them, various and sundry manifestations of that.

[Phillips talked about why he believes judges are fundamentally different than other elected officials.]

TP: Because the judges were engaged in a different exercise, of finding and applying the law, rather than making public policy decisions, it seemed to me that judges needed to be at a further remove from the political process than the other branches, and they needed to be at a further remove from their contributors….

TO: What are some of the other differences between when you first ran and now?

TP: I came in at a time when no Republican was supposed to win down-ballot. It’s easy now for somebody. You just have to get the party to endorse you and make sure that for some reason the straight-ticket vote doesn’t cross over and X your name out, and you’re going to win as the Republican nominee. I think that’s easy but I don’t think it’s as good for a judge, because I clearly had to enunciate my message in a way that would build a coalition that was not going to be present at the top of the ticket. So I think my credentials as someone who’s against partisan judicial elections are pretty strong… My campaign in ’88 allowed me to exercise that nonpartisan feeling to the fullest, because it was necessary to do that to win.

TO: What are some of the other problems with the current fundraising system? TP: The problem is that judges who are unopposed and likely to be unopposed feel that they need to raise a substantial amount of money to scare off an opponent. Most lawyers I know are against the current system but they recognize that judges have to get into office one way or the other. And it is a cost of doing business for them and a cost of staying in office for the judge. And they really don’t mind contributing in a hotly contested judicial election if they thought that one judge was better than the other—either because of a judge’s philosophy or is smarter or whatever. I know very few lawyers that don’t think solicitations from judges who are not opposed and are not likely to be opposed is not something that borders on a shakedown…

The second problem is that the ability to this money makes the Legislature and the county governments less willing to fund the full operations of the judiciary. It was suggested to me by more than one legislator in the last term—when there was such an effort to cut budgets—that our legal staffs should be eliminated or severely reduced, and to the extent that we want staff, we hire them from campaign contributions.

TO: What about the perception that contributors still have too much sway with the court?

TP: There were a few real abuses in the late 1980s limited to a few contributors and a few judges. Most of the problems then, and I think even more of the problems now, are those of appearance, that are an inevitable byproduct of this system. I have really seen only one or two instances on this court of any judge ever casting a vote or writing a line in an opinion based on political pressure or perceived advantage in a political campaign. It’s been a long time since I’ve seen that. And I think that there are examples where that happens at the trial court but they are limited too.

What’s most pernicious is that some contributors would like the public to think that they are buying influence when in fact they aren’t. I had a prominent lawyer at a prominent firm call me and ask for a prediction as to who was going to win a particular race for the Supreme Court of Texas. And I didn’t know. I hemmed and hawed a while. He said, “You know, our firm is really screwed if we got this one wrong.†And that got my attention, since one of the two candidates was going to be a colleague.

And I said, “Which one of these judges is going to hold it against you or your clients if you don’t support him for office.†He said “Neither one. We know both judges. They’re both fair. And they’re not going to be influenced by campaigns. But we are in the market for new business, and we sell to our clients the fact that we are players in the system. If we backed the loser in a race as prominent as this, it will hurt our credibility.†So here we have almost the opposite of bribery. It’s giving money without the intention to influence the result and knowing it won’t influence the result but hoping the world believes that it does. That’s the level to which some of this is debilitating the public confidence in the system and the polls show this nationwide, and in Texas.

TO: There have been rumors that contributors have been lobbying the court, most specifically representatives of homebuilder Dick Weekley. Is that true?

TP: I don’t think it’s happening on cases, and if it is I’d be shocked and disappointed—well, more than that, I’d be appalled. It is happening and it should be happening in the area of rule-making, where the court functions as a legislature, in that we promulgate the rules of evidence, procedure, and administration, for all the courts of Texas in civil matters. By statute, we work through a Rules Advisory Committee that we appoint and we can overrule them but the rules we draft go through them.

TO: What were the effects of the 1995 Judicial Campaign Fairness Act?

TP: Taken together, the limits were fairly generous at the time, but they leveled the playing field and it was really a first in the nation in terms of judicial financial reform that was targeted at judges… I think the concept is pretty good. There’s differing limits given the size of your jurisdiction at the trial and appellate court level and they may or may not be good. Some of them still seem a little high to me. There have been arguments that the cap also sort of sets a floor, particularly at the district court level. If you don’t raise this much, it’s somehow perceived that you’re not going to win. I don’t know that that’s really happening. I think most races are run for well under the cap.

TO: How did the individual donor caps come about?

TP: …An individual cap, trial lawyers always thought, was anathema, because partners in multi-city, multi-office—many hundreds of lawyers in a firm—could each give, and that weight would overmatch them. Now as a matter of fact most of those partners never gave anything, ’cause they weren’t trial lawyers and they could care less what was happening really in the Texas court system—but it was not an unreasonable fear. So in exchange for an individual cap, the trial lawyers demanded and got a firm cap, which the law firms weren’t unhappy about either.

TO: What are some of the other reforms that are being looked at?

TP: We are working on a recusal rule with the Supreme Court…. that would allow a party to trace independent contributions. And if they ended up giving to a judicial candidate in an amount beyond the cap, there could be an automatic recusal of that judge from sitting on the contributor’s cases.

TO: What surprised you about the resistance you encountered to your reform proposals last legislative session?

TP: What I really didn’t realize until late in the session is that the political consultants had a good deal of power over enough members to make this type of systemic reform a very high hurdle. And I guess what I hadn’t fully realized is that the same consultants who run legislative races tend to run judicial races, so we were really looking at invading someone’s rice bowl….

Most judges in Texas still run unopposed, but many of those hire a consultant and have a year-round advisor anyway just to make sure. They pay them a small retainer. Judges get beat at a lot higher rate than legislators do. Because they are generally too far down the ballot to have any meaningful impact on the outcome of their own race, they are at the mercy of other forces, and nearly half of all our appellate judges who’ve been opposed in the last 20 years have been defeated, and over a quarter, close to a third of the trial judges. So the judges are right to take any election challenger seriously.

TO: Will it take a scandal to shake off the political consultants? TP: It may take a scandal. It may just take better leadership. Or it may take the parties deciding that the cost of carrying along all of these judicial candidates outweighs the benefits. The benefits are frankly larger crowds at events and people available for speakers’ bureaus, but a lot of that would happen even in a nonpartisan system.

The parties have traditionally asked judges to help subsidize their activities, but recent legislation has put caps on how much judges can give out of their campaign funds to party-building activities that don’t directly support that judge.

TO: Is there common ground on judicial reform between traditional antagonists like lawyers, doctors, and business groups?

TP: I think most of those groups are ready to call a truce. And every survey of lawyers that’s been taken has shown overwhelming support for a change, no matter how you word it. Now with the public of course got to be worded right. You’ve got to remind the public that they’ll get to vote on every judge, which in fact i
more elections, m
re judicial elections, than they’re having now when they vote in one out of three judicial campaigns that’s contested…

When the public’s reminded of that, they’re for a change. When you just ask them, do you want to choose your own judges or do you want someone in Austin to choose them for you, that’s a predictable result. But the lawyers will vote yes even to the second question, which shows me they want a change. At the trial court level, most lawyers want the same thing. They want a judge that will give them a trial when they want it—that is, after they’ve had time to prepare a case but before it gets too old. And they want a change that will give them a non-reversible trial. Lawyers who want more are few and far between, and I don’t have much respect for them.

At the appellate court, lawyers are more interested in a judge’s philosophy but I think they’re interested in predictability most of all. You want to be able to tell a client who walks into your door that this is the law, and it’s going to be the law when your case is resolved, and based on that you’re probably going to win or you’re probably going to lose. You don’t like to tell a client this is a sure winner and then have it end up being a loser.

[Phillips talked about his belief that last session showed a new coalition forming for judicial reform.]

TP: If this were the number one issue to the business groups and the trial lawyers and the legal profession, then the Legislature would pass it. That’s a more powerful coalition than a handful of campaign consultants, and some dedicated party officials. Even the party officials are split. The Republican and Democratic platforms are against change, but there are many groups of high-level leaders in both parties that are for change. A majority of former Republican state chairmen backed this change in the last session of the Legislature, as did the official organization of county Republican chairmen, which is not a group, I must add, that includes all 254 counties. It was an affiliated group of the party and they backed the change.

TO: Are you going to continue to fight for judicial reform when you leave the court?

TP: It’s possible I can have more effect outside the system. I can certainly speak more freely when I’m outside the system and I can’t do worse than I’ve done. The Legislature has not undertaken comprehensive judicial redistricting of the trial court since 1883, and of the appellate court since 1927, despite the constitutional requirement to do so at the trial level. The court organization has become more complicated and perverse than ever. We’re the only state with overlapping geographical districts of trial courts and appellate courts. Judicial salaries have not kept pace. We’ve gone from 17th to 38th in the nation. While I have accomplished many things with the Legislature, there are many things left to be done, and my successor may bring new perspectives, new arguments, and new ideas to that facet of this job, which I think would be exciting to watch.

[Phillips said he retains his optimism.]

TP: Texas is one of only four states that still elects and reelects all of its trial and appellate judges in this system and it is very much a 19th-century relic. It is a relic of a much simpler time before there were filing deadlines or organized political parties or campaign ads apart from a handbill or two and a keg of whiskey. And it’s just a relic from that time, and it will change. Now, impeding the change is the fact that nobody has come up with a perfect system of choosing judges. There’s not general agreement in America on the role of judges…

The retention system has tended to retain too many judges, and the public doesn’t take a whole lot of interest in who they are. When they are opposed, it is generally for one decision, which is all that can get the public excited. So judges don’t lose just because they routinely are a little lazy or a little sloppy or a little rude, they lose for one high-profile decision, which does not enhance judicial independence.

At the turn of the last century, the progressives thought nonpartisan elections were going to solve everything. It didn’t because the public didn’t know whom they were voting for, and they turned out a number of judges for not having a good last name. So there is not an ideal answer … but Texas I think on the whole has a lot better judiciary than it deserves. There are always a lot of good people who always step up and ask to be appointed whenever there is a vacancy, and there is a remarkably large number of people who will take a year out of their lives to run for an open bench.