Why did you decide to leave the court in 1988?
Hill is a lawyer and former chief justice of the Texas State Supreme Court.
I was very concerned about the tremendous criticism that the court was
experiencing--the widespread perception that the court was too
plaintiff-oriented; that things were not as they should be; and, in terms of
even-handed impartial justice, free of considerations of lawyers supporting
your campaigns or any other issues.
There have been a lot of stories about a lot of different things, culminating
in the "60 Minutes" 'Justice for Sale' piece. In 1987. . . I brought forward a
plan that I thought would solve the problem. And that is to take the Supreme
Court out of partisan elections and fill our vacancies through appointments
followed by retention elections.
And I had a real rebellion on the court from at least five of the judges who
vehemently denounced my proposal. And so it looked to me as if I could better
gain the position that I thought was the proper one for my state if I just left
the court and formed a private non-profit organization that would devote itself
to educating the public. . . I've worked on it almost every week since I left
Now, we're more than ten years down the road from that. Are you sadder but
wiser? What's happened?
Well I'm sadder. In the sense that we still have not succeeded. And that
makes me very sad for my state. Because we clearly need this change. I think
if it were ever put to the vote of the people of Texas it would pass readily,
but we've been stopped by politics. We've been stopped by the political
parties. We've had a lot of political factors that have thwarted our efforts,
but we have made a lot of progress . . . I think we will succeed in 2001.
So you're going to make another big push for, essentially, merit selection:
A governor selecting appointing someone to the state Supreme Court and then
that person facing a retention election some years down the road.
Exactly. . . I'm uncompromising. And not because I'm bull-headed or, or just
want to try to have my way, but because the solution that we've put forward is
clearly the correct and best solution for the problem. We know it's worked in
over 40 states. . . It takes away the influence of excessive money for the most
part. It's not perfect. No plan is going to be perfect. . . For the most part
this system of appoint, elect, and retain the judges gives the voter a right to
veto a right of accountability. But it just takes out for the most part the
money from the lawyers that are giving money to judges and appearing before the
court. . .
In the meantime you have a system where there's a great deal of money that
has been spent on judicial elections over the past decade. And that money
comes from, among others, law firms like your own.
Absolutely. We're involved in it. I m not casting stones at others when I'm
talking about this problem. It's built into the system that we have. The
judges have to have money to run these expensive races because the state is so
large, we have so many television markets. . . That's the system that we're
trying to change. In the meantime, while we are working for change, we can't
turn our backs on the judges that we believe should be the judges of choice.
And we have to support their election. So we do it, and our firm does it.
Plaintiff's bar does it, the defense bar does it, the business community does
it. Other interest groups do it, so then you have the problem that we're
talking about: that the public out there just looking and seeing all the money
flowing and they say, "Well it's bound to be having some impact." So why can't
we all get together and just take the money out. . .
Is justice for sale in the state of Texas?
I don't think it is, but there's a very widespread perception that there's an
element of favoritism, there's an element of partisanship, that it matters who
your lawyer is, that's out there. To what extent I don't know. But if it's
out there to the extent that people are concerned about coming to Texas or
having their legal affairs dealt with in Texas then we ought to take that very,
very seriously. . .
When someone gives a very substantial donation to a judicial candidate, are
they in a sense trying to win some favor on the court?
You know I can't read everyone's mind. I don't think that that is the
motivation of the overwhelming majority for example of the lawyers that
contribute. We feel it's our responsibility to contribute. I don't expect any
quid pro quo. I don't think lawyers are thinking that way. . . He may have an
orientation. . . that's more conservative or he might regard him as maybe more
liberal in those sort of issues. I can't read everybody's mind on that.
Over a decade ago people were basically saying, "Look the money for this
court, the campaign contributions were coming from lawyers, trial attorneys."
They were making the big contributions and if you can make gross generalities,
they were getting the decisions they wanted. Now, ten years later the money is
coming primarily from other sources, from business interests and the
decisions--not all the time by any stretch of the imagination, but in the
majority--tend to be going their way.
Well, you know, it's just not the correct way to put what is happened. Sure,
if you have a court that was viewed as more apt to affirm verdicts, not cut
down awards, create additional remedies or additional duties, and in fact not
only on the court I presided over, but that was the trend in America at that
time. It was the perception.
Once again I'm really hammering on that word. . . The public believes that
there's some kind of relationship of those philosophical results from the
contributions being made by the supporters that affects specific cases--that
has got to be dealt with because it's a very bad situation. . . So I'm trying
to suggest to you that yes, there has been a philosophical change in the court,
but I don't think that the quid pro quo thing is necessarily true of either
court. . . I don't think it's true. I think what the problem is that you have
so much money coming into the system in these partisan expensive elections that
come primarily from lawyers, that the people believe that the lawyers have
gained improper control, of the courts. And that will never stop. . . So it's
a system that has to be changed. I sound like a broken record. . .
So maybe we'll be back here next year watching how your reform effort does
in the state legislature.
It'll be in 2001. I hope you will do that, keep up with us, because we're
going to make it.
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