justice for sale

interview: rodney ellis

how bad is it?
my state
selecting judges

rodney ellis Ellis is a Texas state legislator.
Now that your governor is running for president of the United States, do all of you in politics and on the bench feel like you're more in the spotlight now?

Obviously you get a lot more scrutiny when your governor is running for president. And that's both good and bad. I use it to my public policy advantage as much as I can. It is an opportunity to focus on a lot of issues that we'd like to not talk about in Texas. . . Eyes of the nation are on Texas. . . And the reality is that whether George Bush becomes president of the United States or not, the issues that will be focused on in Texas will be there for those of us who will remain here in the wild, wild west to address. . .

What about the indigent defense reform bill that you passed this year? The state legislature passed it unanimously. Then Governor Bush vetoed it.

I think he was getting a lot of pressure from judges. I know he was getting a lot of pressure from judges who thought that maybe we were taking some power away from them that they ought to have. I think there were only about two or three states that let the judges determine who represents the indigent person in court. Most judges in Texas, criminal district judges, are probably people who came out of the prosecutor's office. And if I were a poor person walking into court, I don't think I'd want the judge who was the next prosecutor, the prosecutor who was trying to put me behind bars, and then my attorney being appointed--[he] probably came out of the prosecutor's office as well. Just something that doesn't smack of the element of fairness that I would want there. And a lot of those judges probably picked people who they think will help clear the case load.

Most of the judges I talk to don't like the demeaning prospect of having to go ask people who come before them in court for campaign contributions. But they have to do it.  I think a good number of judges in Texas would prefer  we go to an appointed system. There were allegations about whether it was political patronage for campaign contributions. I don't know. I think the broader issue is most judges probably appoint people who can clear their dockets. We love judges in Texas. And if you're running for reelection, I don't think you can get reelected saying, "I was fair." You get reelected in a criminal district court based on the notion of judicial efficiency. Did you clear the case load? I'll tell you another real tragedy on this issue. There's no political constituency there for this.

What's the difference between a judge running for his seat and a politician?

Very little. The judges have to go and raise money. One big difference would be a politician in the state senate, big districts. I assume if I had a contested race, I'd have to raise from half a million to $700,000. It's generally a diverse group of people who would give to me. And regardless of whether I vote for or against them, they'd probably give. The pick up they'd think I might win. But in the case of a judge, it's usually a small clique of lawyers primarily who give the contributions. Now never having been a judge, I wouldn't want to walk in their shoes, but my sense is, it creates a perception of justice being for sale.

Whether it is or not, is an issue for the public to decide. But it certainly creates a perception, judicial campaigns are extremely expensive in this state. Harris county is fourth largest county in the nation. A statewide race in Texas, I sense that the only elections that would be more expensive than a seat for the Texas supreme court would be in maybe Florida. They're getting pretty close. Or if you had a major retention election out in California, back in the Rose Bird era, you'd have to spend an unprecedented amount of money.

But you're talking about at least a million dollars or you're not in the ball park to run a judicial race statewide. In Texas. And even for a county bench, here in Harris county, you're talking about $250,000 to a half million dollars to run a decent campaign.

The state supreme court and the bar association did a survey recently and they found out a couple of interesting things. One is that 83% of the people polled said that they thought financial contributions campaign contributions to judges affected their judicial decisions. So that's the public saying it. Then they did another survey and found that almost half the judges surveyed said financial contributions affect judicial decisions.

I think that's pretty accurate. Whether they affected decisions for or against you. You know sometimes it may make a judge feel inclined to lean over backwards to rule against you because of the potential criticism, the backlash that may come, if a case involves a major contributor.

Let me ask you about the swing in the courts here too. I mean there's been a big political shift in the last decade. You as a Democrat know that here in Texas. But the courts have also changed, in particular the supreme court. Want to tell me about that.

Well, one frightening thing is that those shifts tend to be cyclical. I'm a Democrat and so far the shift is for the Republicans. But that would be a shift at some point, a swing election for Democrats as well. What's frightening about that is that when we've had these major political swings, the people who have gotten in have not necessarily been in my judgment the public's first choice. Because the conventional wisdom is you can't beat an incumbent.

And it often times the people who have gotten on the ballot and won during a swing election have been the joke candidates. I mean they have been the peripheral candidates, the perennial runners who just put their names on the ballot. And all of sudden they end up wearing black robes and, and administering justice. or something they call justice. And then it takes those baby judges a while to make it over the a steep learning curve. Or it may take another cycle to get thrown out. So that the party system would cleanse the judiciary shall we say a bit.

And what's frightening is that even in my party, when we have another swing and win on the Democratic side, it becomes a problem because often times the people who are willing to take the chance to roll the dice are the ones who have the least to lose. The ones who are walking around and all of a sudden they wake up one day and the good lord put judge in front of their name. It's a hell of a predicament. Which is why I have gone full circle. Initially my issue involving the judiciary was highly integrated. In a state as diverse as Texas, a state that in 2030 will be predominantly minority, Mexican American, and African American and Asian American, I certainly thought something was wrong in the system where most of the people wearing black robes were white.

And most of the people who end up encountering the system particularly on on the criminal side, were minorities. So I want to integrate the Texas judiciary and I was pushing for subdistricts over an argument about single member districts. And when I couldn't get that bill passed, I've gone full circle. And now I'm an advocate for an appointed system. Appoint elect and then retain the judges. So there is an election but after an initial appointment.

And obviously I would prefer that the person be someone like my good friend Governor Ann Richards doing the appointing. But I think even if the governor is Republican a la George Bush, I think we're better off in this state in terms of the long term public policy issue for Texas, having judges that are appointed.

Because that, in theory, gives you a less partisan more independent judiciary.

Well it'll get you somebody who got out of law school and they don't necessarily have to have come out cum laude but it wasn't thank you laude. To be honest with you, I just want people who make good sense, even if I don't agree with the decisions. I want someone who can write the opinion and articulate why the hell they ruled a certain way.

We've read you've got a history of some real characters on the bench in this state.

Well you know accidents do happen and I think we've had more than our share. And I think that you have far more accountability regardless of whether the governor was a Democrat or a Republican if you had that process in which a governor was accountable. For his or her decisions. And then you do have a check because after the initial appointment you would have an election. And then a retention election.

That's a tough one to push in Texas. Because most people want to vote on everything and they want to vote as often as possible. You know I suspect a good number of my constituent would like to vote on me every month, if they could. So it's a uphill battle and we have to amend the state constitution to pass it. Now it did help when a number of people on my side of the aisle, people who were permanently interested in the civil rights aspect of integrating the judiciary. A good number of us have now joined forces with advocates for an appointed system.

Now I must admit I know that some of the people who want an appointed system, also want an appointed system because they were the donors to the campaigns. And it was getting pretty expensive for them. But I also think that there's an element of altruism there. I think when I go back in the next session even if we can't pass a bill that has immediate effect to take the money out, to enhance the quality, the caliber of people who end up on our benches, wearing those black robes -- maybe the tack I may take is to suggest that we pass a bill that goes into effect for six years from now.

...I think the system has gotten pretty unbearable in a state as large as this, with so many judges in Texas. And our population just is growing by leaps and bounds. And [we] need to create more and more judicial positions in the state. I think we're picking up some sting. But even if it gets out of the legislature, it won't be that easy to convince the voters, despite the polling data that indicates they have a concern about the money in the system. It won't be that easy to convince the voters they ought to give up their right to vote. Even if most states do have judges that are appointed.

I've noticed that people we've talked to--the courtships are very political. That you have the people who were once for elections or once for merit system. They get elected and suddenly the merit system is something they're not so interested in and vice versa.

Funny thing about incumbents. It does tend to change one's attitudes from time to time but I think that we would remove the concern that incumbents have if we decided to, to do something that is prospective down the road.

We've read a couple of independent surveys that indicate that the current make up of the court, Texas supreme court which is now all Republicans and people who have gotten a lot of campaign contributions from hospital associations, doctors, businesses, insurance, that their decisions seem to have gone that way.

I think that clearly is the case. Initially when the Texas judiciary was under scrutiny because of the need for campaign finance reform, the perception was that the plaintiffs bar, the trial lawyers were controlling opinions and at that time the members of the court said it was a philosophical difference. They were voting based on what they believed. That is interesting that a lot of people who criticize the inordinate amount of money that went into the Texas judiciary when it was coming primarily from the plaintiff's bar are now quiet when we have an unprecedented amount of money coming in from the defense bar.

It's as though when it was too much money from the plaintiff's side, it was tainted. But it's ok when it comes from the establishment side. And I can't really comment on whether or not those judges make those decisions because they're simply more conservative or whether or not it's the campaign contributions that influence them. Because the judges on the other side make the same argument, that it was philosophical then. But I do think that from a public policy standpoint, my role ought to be to try and do as much as I can to give the public confidence in our judiciary. And to do as much as I can to take the money out.

I passed a modest campaign finance reform bill which you are aware of some years ago. It made some modest strides in the right direction. Now at least we know have a better sense of where the money comes from. At least people have to say what their occupation is but I think there's a need to do a lot more. During this interim, I plan on looking at what other states are doing and going back with an even stronger campaign finance reform bill for the next session.

Who knows, that may be help create more of an impetus to try and go to an appointed system as well. But I think the reality is, as long as we are electing judges in Texas, people have to raise money. Those of us in the legislature are responsible for the system. We put those judges on hopefully a basically honorable men and women in a position where they are in harms way. Where they have to raise money. And I think it's our responsibility to correct that inequity.

What do judges tell you these days--do you have any sense of them feeling any particular pressure? Political?

I know that most of the judges I talk to don't like the embarrassing demeaning prospect of having to go out and ask people who come before them in court for campaign contributions. But it's one of the hazards of the job. They have to do it. They don't like it but they have to do it. I think a good number of judges in Texas would prefer that we go to an appointed system.

But I think the real problem is those judges need to do more than just feel as though we ought to go to an appointed system. I think that they have to publicly involve themselves in the policy debate in order to get a bill out of the legislature and then take it to the voters of Texas.

You mentioned power of the medical lobby. In fact, we will interview a lobbyist for the Texas Medical Association. He was too busy going to campaign fundraisers to be able to talk to us right at the moment. But what about insurance as an industry in this state?

Insurance companies are very strong. Not just in Texas but with state legislatures around the country. The insurance lobby, the, the corporate lobby in general and because most state legislatures tend to be part time jobs, or tend to be somewhat provincial in terms of the resources we give ourselves. In Texas and in other places. It's almost frightening in some ways because you end up relying to a great extent on the fifth branch of government, the lobby.

Those of you in the media are the fourth branch. You end up relying on the fifth branch of government to do a lot of the research and that's scary. Now a good lobbyist knows that if they lie they only get to lie once. Because if they get caught then you lose confidence in them. But in Texas as in other state legislatures I have found that California, New York I think being major exceptions, but most state legislators don't give themselves nearly the resources, staff resources and technical resources to engage in a good public policy debate.

And in our state because of being 140 days every other year, we make $7200 a year, $600 a month. We're truly a citizen legislature. And it means that often times the lobby ends up having a bit more influence than they ought to have. I think there are about 5000 bills that are filed during that 140 day session. I think I may have carried a good 200 bills might have passed 75, 100 something like that this session. It's hell for me to keep up with my bills, less know, keep up with everybody else's bills. And that means that often times people in the lobby are legislators who carry things for people in the lobby without knowing what they are carrying. Can do a lot of harm.

Now when you're running for reelection and someone gives you a very, very large campaign contribution, you tend to know that they like you to vote one way or another.

Oh of course I do and I send them all a nice thank you note. And let me tell you, as one of the biggest advocates of campaign finance reform in Texas, until we get it, the best thing I can do as a reformer is have a war chest big enough so I can write checks back to people. And I also have the good fortune of having a district that I think has confidence in me. That I think is somewhat of a safe district. If I do my job I think I'd get reelected even if I didn't raise another dime. But oh yeah of course when people give money, they're not buying the vote, but they certainly give the money expecting to have access. And in the Texas legislature when you only meet for 140 days, it's a game for the swift. And access is an important commodity to have.

Now that's with the state legislature. So now I'm someone contributing an enormous amount of money, bundling some in my law firm for a judge, a justice on the supreme court. What am I trying to get.

Well I think you are trying to get your case heard but you also want your client to win. I mean I don't think you've just given a campaign money to these judges because it's a philanthropic endeavor. I mean that's you're doing it for a reason.

And the reason?

Well, because you're hoping that the judge will look kindly upon you when you walk in the court room. I remember years ago when I clerked for an appellate court in Texas. And the judge said "Why don't you take a crack at drafting this opinion?" And I didn't know which way he wanted me to go. He didn't tell me. So I went in and I wrote the opinion and I gave him a draft. And then he said "I don't think you quite have it right. Why don't you take another crack at it?"

So I read the briefs from the law firms on the other side and I went back and wrote an opinion going the other way. And then he said now you know why we call this an opinion instead of a decision. Cause it's my damn opinion. And he said go with the first one. But the point I'm making is a lot of these cases could go one way or the other very easily. Sometimes the issues may be so close that it almost comes down to a flip of the coin. And I suspect in the inner sanctums of the courts of power, when those judges are meeting and talking about a case, trying to see where the votes are then you determine who will write the opinion. Sometimes it almost comes down to splitting hairs. And I think that, that human element does play a role. You probably are a bit more apt to pay attention, even if a case is somewhat boring, it's a long day. It's 105 degrees and you're a bit testy. If the person addressing the court is someone that you know, you've worked with, has a been a major political supporter which is why unfortunately folks on both side of the aisle end up having to play that game. It's an unfortunate game.

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