justice for sale

interview: tom phillips

how bad is it?
my state
selecting judges

tom phillips Phillips is Chief Justice of the Texas State Supreme Court
Do you like running for election?

Yes and no. I don't like raising money. I don't like asking for it or getting it. And when I see the poll numbers that some of the contributors think that they ought to be doing this, that's even more discouraging. But I like the strategy of, or perhaps the discipline, of deciding how to communicate how you intend to perform in a very complex job with a number of duties to the voters in simple phrases and words. Specifically, the 30-second television commercial has about 130 syllables in it. That's the amount of communication time you have to reach the vast majority of voters in the state. If they're going to cast an informed vote in your race, they've either got to very closely read the back pages of the newspapers, or you've got to give them some information in a 130-syllable advertisement.

And that's the campaign. I mean for all practical purposes raising the money to buy TV time to run 30-second ads is your campaign.

Yes, that's really the campaign. The broadcast media is the way most people communicate and decide political issues now. Two generations ago they sat on their front porches during the summer and talked politics with each other. Or they went to lodge meetings or church socials, or while they were hanging the wash out on the clothes lines. Politics was an interpersonal affair and the parties had large organizations on the ground with precinct captains and ward leaders or whatever. And politics was one individual to another. Now, it's virtually impossible to conduct a campaign that way. . .

You are a very well-educated man. You have a judicial mind. You've had to handle very complicated cases. To boil all that down into a 30-second TV ad that's going to be popular and get you reelected--isn't that frustrating to campaign that way?

It's an interesting challenge. But ultimately it is the public's decision who sits as their judges. And I do think people put a different standard on who they want for a judge and then who they want for their representatives to some other type of office. Cute nicknames that frequently have helped people get elected to congress or to other types of state offices, generally don't work in judicial elections. . .

Do you think that qualified candidates judges, potential judges, simply say, 'Why bother, I'm not going to put myself through that?'

Some people have told me that they are not willing to stand for judge because they don't want to be labeled a Democrat or a Republican or they don't want their children to see an ad accusing them of untoward conduct. But we still have a number of highly qualified people who do want to be a judge and are willing to run the possible risk of those bad consequences. . . I know when federal benches of comparable prestige and responsibility come open in Texas that an even larger number of people apply to the president for appointment and so I do think we've had a talent drain from this system and that we could improve our judiciary by changing this election system.

What's the most that you've had to raise and spend in an election?

Well in 1990 I had a very expensive election. I think it was $2.6 million. But that came from 12, approximately 12,000 contributors and it was against another sitting judge on our court who was also very well funded. In 1998, I spent slightly more than my opponent. We each spent in the neighborhood of $2 million on the campaign. But there was also a $l.4 million independent "Fund for a Democratic Texas" which ran ads critical of the Republican justices on the supreme court, so it was arguably even a more expensive race. . .

What goes through your mind when a case comes before you and you know that the lawyer has contributed money to you.

Well, it's simply not a factor. Let me say first off, in most of the cases we get, either both sides are contributors or neither side is. If the case is a business dispute that comes from a large city in Texas with the clients represented by large firms, generally both sides will have contributed to the campaigns of all the justices up here. If it's a family law dispute from a small town in Texas or it's a boundary dispute over a piece of land in rural Texas, it's very unlikely that either client or either lawyer will have been involved in supreme court politics. And so it's simply not a case very often where you have a close friend and a good supporter in the court against somebody who's done all they could to defeat you. . . Frequently, by the time we make a hard decision on who's going to win or lose this case, we don't frankly remember the oral arguments or remember who the lawyers are. . .

Today on our court,  most of the judges feel like this is not a good system.  Most of us feel like judges should not run as Republicans or Democrats, which in my opinion has been a terrible blow for the stability of our judiciary.  Our decision is interpreting one statute that the legislature has passed, or looking at one provision of our constitution and deciding if it governs this case. Or it's looking at maybe ten cases that this court has decided in the last 30 years and trying to resolve what they say in a way that decides this case. And that whole process of judging is simply not one that admits of tilting the field one way or another to help some individual person - lawyer, client, anything else. We decide a case not just as one to win or lose but we write this opinion that explains our rationale for reaching a decision. It governs that particular law suit, but then it also serves as a precedent for future law suits. And those decisions have to be very carefully crafted or we can inadvertently cause other law suits to be fomented due to loose language or sloppy thought. There's generally not much else behind our decision process that's not explained in that decision. . . And obviously, not everybody believes that. If the poll data is right, a whole lot of people don't believe it. . . Judges themselves think that the system we have for getting and keeping judges in Texas is one of the two biggest problems we face. . . Unfortunately the judges like the legislators don't all agree on what that change should be.

The sternest critics of your court who've looked at decisions say that 86% of the time this court decided in favor of physicians and hospitals. Over 70% of the time in favor of insurance companies and manufacturing companies. Two thirds of the time in favor of other businesses. Does that sound like a fair assessment of the record of this court in the last five years.

I would not dispute those numbers, although I can't replicate them, because a number of our decisions go both ways in essence. . . But those numbers are as good as any I guess.

All right so let's assume at least for the purposes of argument that those numbers are as good as any. Does that mean that those interests--physicians, hospitals, insurance companies, businesses--have succeeded in changing the philosophy of the Texas Supreme Court from ten years ago?

I don't know that the numbers show that. I mean, the philosophy of this court is different than it was ten years ago. That's part of a change that we've seen in our legislature, in the attitudes of the people about the limits and possibilities of lawsuits as a policy making instrument, and it's part of a change that's happened all across America. I don't know that these numbers prove anything. We're operating, you will recall, on decisions by intermediate appellate courts which have reviewed a decision at a trial court and we take less than one case out of ten when we believe the decision below was decided wrongly. . . Just to be blunt about it, if you have four or five courts that are very activist for instance in their decisions. . . We may grant a disproportionate number of cases from [these] courts, reverse them a disproportionate number of time and they're all--if they all happen to be going the same way, that will skew our numbers. . . If you separate those courts out from the calculus, the numbers are much more like 50/50 in the remaining courts. . . I hired my accountant and a law professor at the University of Texas to study all of my votes while the last campaign was pending, and to correlate those to my contributors. And I found that, by very few dollars more, the pot of money that came from lawyers that were associated with certain cases, I voted against my contributors slightly more, like 50.3 to 49.7, than I voted with them. I think that's about right. It simply doesn't make any difference.

Can you see if people are reading about court decisions and saying, 'Well the court has really gone in this direction in the last ten years. Decisions are more in favor of certain interests and money--and contributions from those interests have also increased in this time period. ' Can you see how that leads to the perception that a court can be bought, not an individual justice, but a court.

Certainly it does. And I think that is one of the strongest arguments against the system of judicial selection we have. I worry about the system and conclusions that people may draw from that system. If those people are working in good faith, then I welcome the scrutiny we have, and I wish more people followed the Supreme Court of Texas rulings and tried to draw general and specific conclusions about our work like they do about the U.S. Supreme Court. I must say in all candor that some of the groups that criticize our court are not merely public-spirited citizens that want to understand their system better and want to help other folks understand it better. I mean, they are funded by groups who have been very active in political campaigns for our court and elsewhere, and maybe didn't win the last few campaigns. And this is just another method of carrying on the political dialogue and not a disinterested public education dialogue.

You are in the trenches as a member of the Texas Supreme Court. Is judicial independence--and public confidence in it--a real problem, or are we in the media once again exaggerating something here?

The judiciary I think shares in common with many institutions in our country a situation where there is a decline in public confidence. Or, put another way, there's an increase in public skepticism and this is a trend that has affected organized religion, educational institutions, business organizations and all forms of government. The judiciary shares that.

But I do think the judiciary has some special problems. And basically our problem is our strength: that we don't have the power of the sword or the power of the purse. The power of the judiciary comes from public respect in the rule of law and a public willingness to take disputes to the courts and abide by the results that are reached there. So it is very important that people believe that judicial decisions are based on the rule of law--that is, on something bigger than the judge's personal preference and something that the people have had a hand in, no matter how remotely. . .

I think it's always been true that an elected judiciary is a trade off. People feel like they have more direct say in who the judge is, but they also worry about the pressures that the judges are subjected to as they go through that election process. Fifteen years ago, Texas was virtually alone among the states in the nation in having some very expensive and hotly contested judicial races. Now it seems to be spreading to more and more states, and to more and more kind of elections--not just the partisan Democratic versus Republican elections we have here, but the non partisan elections that a lot of states have and the retention elections, the Yes/No type of election that those states that use merit selection have. . .

So why continue the elective system?

The election has two salutary effects: It reminds the judge of who is ultimately in charge in a democratic society. Some people say the trial judges are more courteous to witnesses and more prompt in their schedules when there's a retention election on the horizon. And, secondly, it lets the people have some say, some check on every judge. . .

I know you've done a lot to try to reform election of judges--you're not against election of judges. You wouldn't be for going to a merit system of selection?

Well, the merit system involves an election as well. It's the type of election I've been talking about. . . Very few states have a pure appointed system. Every one that does is one of the original thirteen American colonies that became states and it's a hold-over from their colonial or early statehood experience. . . And those appointments are subject to a great deal of scrutiny on the front end. A number of groups look very carefully at every appointment that a president makes and it would simply not be possible to have that kind of scrutiny among 30,000 state judges appointed over the entire United States. And so I think we have to have some other type of check on a judge's behavior.

It's possible you could have a system in Texas where the governor would appoint people to the bench. You would be confirmed by the state legislature and that would be it. You could have that system.

You could have that system. I simply don't think in a state with populist roots is deep as Texas', or in fact most of the states that have joined the union in the last 200 years, that that would be politically viable. . . [In my years on the court], my biggest regret is that we are still using the partisan contested high dollar method of choosing judges and a decade ago I didn't think we would be. I thought there was enough momentum for change but the fact is whichever political party is doing well in the current system is very leery of change and they're looking very closely at what possible negative consequences might arise from coming up with a different method of selection. It's going to take essentially a political party or rising above its very narrow very short term interests in order to affect this change in Texas.

You have spoken out nationally as a reformer of this election system.

Today on our court, most of the judges feel like this is not a good system. Most of us feel like judges should not run as Republicans or Democrats, which is in my opinion has been a terrible blow for the stability of our judiciary. As the state has changed from one party to the other over the last decade, over 200 of our state trial and appellate judges have been defeated in general elections. In almost every case for no other reason that I can identify other than they were running on the party that was not popular. . .

You've been quoted before as saying that even though you have set limits on campaign spending in judicial elections, that you yourself would not unilaterally disarm. Is that a fair assessment?

Yes it is. I have, especially in 1996, thought long and hard about whether or not there was any other way to run one of these campaigns. And in fact, as a court, we have thought about whether we could simply forbid certain categories of people from contributing to campaigns and whether that would help increase public confidence in the highest court in the state of Texas. And we really concluded that there's no wholesale change, that we can make as opposed to the legislature that will solve this problem. . . In my 1996 race there were considerable efforts to find an opponent for me in the Republican primary because of one decision I had made that was unpopular. Had I unilaterally disarmed, I probably would be on the street today practicing law.

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