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Phillips, continued from page 5 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 “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:’ 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 disappointedwell, 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 [contribution] 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-officemany 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 systembut 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 12 THE TEXAS OBSERVER 6/4/U4