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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 [appointing judges who would then face nonpartisan retention elections has] got to be worded right. You’ve got to remind the public that they’ll get to vote on every judge, which in fact is more elections, more 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 itthat 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 highlevel 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. 1 6/4/04 THE TEXAS OBSERVER 13