Page 17


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 moneywas 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 [the 60 Minutes broadcast of December 6, 1987], 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. [There was a] 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… “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!’ 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 othereither because of a judge’s philosophy or [the candidate] 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 [raise] 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 termwhen there was such an effort to cut budgetsthat 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 continued on page 12 6/4/04 THE TEXAS OBSERVER 5