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Paths to Texas Judicial Selection Reform | Chief Justice Tom Phillips

TALP 55 | Texas Judicial Selection Reform

The mixing of politics and judicial selection has been a part of Texas history from the beginning. Political parties continue to influence judicial appointments and elections, and money is always a significant factor. In recent years, though, many have sought to reform the system. In this week’s episode, former Texas Supreme Court Chief Justice Tom Phillips joins Todd Smith and Jody Sanders to discuss the various reform efforts, including the work of the Texas Commission on Judicial Selection. Chief Justice Phillips explains the history of how Texas picks its judges, the potential reforms, and the downsides to different systems. He also shares his encyclopedic knowledge of political and judicial history to put the debate in context.

Listen to the podcast here:

Paths to Texas Judicial Selection Reform | Chief Justice Tom Phillips

We have with us today a man who really needs very little introduction, former Chief Justice of the Supreme Court of Texas Tom Phillips. Judge, welcome to the podcast.

Thank you. It’s great to be with you.

We’ve had the privilege, judge, of having some former Supreme Court Justices and, actually, Justice Jeff Boyd, a current Supreme Court Justice, was our very first guest on the show, but we’re super happy to have you with us and look forward to our visit today. I know I said that you need no introduction, but just to set the stage…

For some of your younger viewers…

For some of our younger viewers and listeners, let’s talk a little bit about your background and your early career and then we’ll launch into the rest.

I’m a native of Dallas. I went to Baylor and to Harvard Law School. I clerked for the Supreme Court of Texas, one of four justices who started their career there as a law clerk and I worked for Baker Botts in Houston, the only office they had then and was appointed by Governor Clements as a District Judge in 1981 when I was 31 years old. It’s probably the most exciting day of my life. I was elected twice as John Stovall back in Houston would say, “Plenty of opposition, but no opponent.”

In late 1987, when Chief Justice Hill announced his resignation Governor Clements, back in office after a term out in the wilderness, supported me as Chief. I served in 1988 and was elected in the fall of that year. I was reelected in 1996 and 2002. I left the Court in 2004 and purified myself with a year of teaching at South Texas and SMU law schools. Since 2005, I’ve been in the Austin office of Baker Botts.

I didn’t recall that you took what we might call now a gap year in between your time at the Supreme Court and Baker Botts. How was that experience with teaching at the two law schools?

It was probably the hardest thing I’ve ever done. Trying to prepare 4 to 5 courses. It was just when the internet was becoming ubiquitous. Students would all carry their computers into class with them and they would look up a case as you were talking about. They’d look up a commentary and say, “Professor, Joe Blow says this. What do you say about that?” They kept me on my toes. They’d send emails at 10:00 PM or 11:00 PM. “We’ve been sitting around and we think what you said today was wrong. What do you have to say about that?” I was happy to retreat to a place where, at least, there was some delay in the critique of your work.

I hadn’t considered that as being a risk. There were laptops in the classroom when I was in law school. Very few but they were there. It was before the age of wireless internet.

I didn’t have the proper discipline on it.

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We had wireless, but I’m pretty sure I never emailed a professor to tell them they were wrong. I don’t think that happened while I was in law school.

Much less the Former Chief Justice of Texas.

These were discussion groups, and maybe I should have stuck with a pure lecture. The great man dropping pearls of wisdom, but that wasn’t the classes we were running by and large.

This is the risk of inviting discourse in the classroom, I suppose. If you’re educated in Texas, there’s certainly an abundance of jurisprudence out of the Texas Supreme Court that has your name on it at the top of the masthead. You presided over the Court at a very interesting time in its history I would say. At a time when it was still possible for people of both parties to be elected to the Court. In fact, I think this is still correct to say that my Judge, Raul Gonzalez—I know he was the last Democrat elected to the Court and I think he may be the last Democrat elected to statewide office. I’m not 100% sure about that.

He tied. There were several people elected in the 1994 election, including John Sharp, Bob Bullock, and several others. Raul was in that group, although unlike them he was unopposed so he had an easier race in ‘94. The people who were not particularly enamored of Judge Gonzalez found a person willing to run as a Republican named George Bush. The organized bar drafted Judge Kitzman into the Republican primary on the pledge that if he was the nominee, he would withdraw from the race.

He was the nominee by a fairly narrow margin over Mr. Bush and he lived up to his promise and withdrew. That was the year that Judge Gonzalez had still what’s the most expensive judicial race in the history of Texas in his primary, where he defeated Rene Haas in a runoff. It was such an exemplar of how judicial races could go wrong that it caused Governor Bullock to convene a special committee and come up with a new plan. That generated about a decade’s worth of interest in judicial selection reform. I said interest, not actual changes.

When you said he had run unopposed, I was going to challenge you because that was exactly the time that I was interviewing with Judge Gonzalez. It was during the time he was going through that hotly contested primary. I wasn’t sure I was going to have a job or not but he did prevail in the primary and the rest is history.

You were hired by the entire Court, technically, for that reason because we would come in and say, “We’re going to extend an offer to this young law student.” Is there any objection? While I was there and there never was. Prior to my coming, there had been some objections but that policy was introduced when we went to the individual hiring, for that reason. Tenure is always an uncertain thing on an elected court.

That was good to know that there was that safety net. I’m not sure I was aware of that at the time, but certainly Judge Gonzalez was an animated figure on the Court. Over that same period of time, there were so many other interesting figures. We had two future attorneys general and a future governor but before I got there, you had a future Congressman, former Justice Doggett, now Congressman Doggett. Between Doggett, former Justice Cornyn, and former Justice Abbott, you can almost make a case that the Supreme Court at that period of time was a stepping stone to other offices.

Politics

Judicial Selection: You cannot take politics out of selecting and keeping judges.

It was definitely that in the 19th century when a number of governors and senators had a stint on the Supreme Court at some point in their career. The Court became much less political through much of the 20th century when it was the final job, but few people left the Court to do another job other than being a visiting judge or sit around and whittle. There was no maximum age retirement until the late ‘60s, early ‘70s. There were people serving on the Court up until their 80s. It got somewhat more political starting with Will Wilson running for attorney general in 1956. Justice Doggett was the next person to run from the Court for another office.

After that race, we changed the rules of ethics to require a judge at any level to resign from the judiciary to run for a non-judicial office. I didn’t regard this a particularly bold step because every other statement, judicial conduct code already had that provision. We adopted it in Texas in time when Judge Corman decided in 1995 to run for attorney general, he resigned. It wasn’t the rule then but it was going to be the rule and he knew it was going to be passed about that time, so he left.

Justice Gammage did it in reverse.

It was a stopping point for him because you might recall, he ran for governor in 2002 and lost in the Democratic primary to Dan Morales and Judge Spector ran for state representative in the next cycle in a special election and lost to Joe Strauss and went on to become speaker. We did have a few more political aspirants there, but they did not resign from the Court to make a race.

If the listeners can’t tell, Chief Justice Phillips is a walking font of historical knowledge about the Texas Supreme Court specifically, but about politics also. It’s as good a time as any to bring up your impressive campaign button collection, which I’ve seen during my time at the Court. Are you still doing that? What are you doing with your buttons these days?

They’re in some boxes downstairs. My wife is a tolerant person, but she didn’t like my button display case, which took up most of her room as much as you would think. She wanted to waste some wall space with family pictures and such. I got rid of it and gave the display case to a museum, which had always been in my offices, as long as I was a judge. The buttons are now less exposed to light but they don’t make them like they used to. My collection pretty much ends in the ‘70s and ‘80s. They’re bigger now and not as easy to store.

I can only imagine and you had quite a number of them, as I recall.

Yes.

We thought about having you on the show, not only because of your position as a former Chief Justice of the Texas Supreme Court, and now for many years, having been in private practice as an appellate practitioner, so you’ve got that additional experience. You mentioned judicial selection. My recollection is there’s been a trend among the recent holders of your former office to be rather outspoken on the idea of how Texas selects its judges, specifically, its appellate judges. It’s fair to say that remains your position. You are an advocate for reform in the judicial selection process. Is that fair to say?

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That’s fair.

Your successor, former Chief Justice Wallace Jefferson, is known as having the same basic position. I believe Chief Justice Hecht spoke out on these issues, too. Do you remember when you first started thinking about needing to be reform in the system and what led you to be a proponent for it?

In a college government course, which goes back into the 1960s, the Texas government class that was required of everyone who was going to be a school teacher, and I wanted to take it. We had an exchange of views written by Judge Calvert and Judge W.A. Morrison on the Court of Criminal Appeals. That’s the first time I was aware of the issue. Calvert told the story of when he was campaigning and somebody said, “I’m so glad to meet an actual Supreme Court Justice because heretofore I’ve always voted for the second name on the ballot to counteract the uninformed vote.” Morrison argued that he went over to see a law school classmate who is now a federal judge and he had to go through administrative assistant after assistant. One of them finally called into the judge and said, “There’s a man here who claims he’s a judge and claims he knows you.”

He said that his door, as a judge since he was elected, would always be open. Those were the two competing views but I got more interested when Don Yarbrough, a 35-year-old lawyer from Houston, who eventually had a little murder for hire problem, robbery problem, and went to prison was elected to the Supreme Court of Texas by a rather handsome margin over Chief Justice Charles Barrow of the San Antonio Court of Appeals. That got me exercised but not personally involved. Like so many I got personally involved when I was appointed in 1981 to a state district bench in Harris County and faced an election in 1982 in a county that generally voted Democratic and I had been appointed by a Republican governor. That’s when I got excited about it.

Wayne Fisher, then the president of the State Bar, put me on a committee to study reform and I testified in front of the legislature with some regularity prior to becoming up to being appointed Chief Justice. One of the reasons Governor Clements appointed me, as I already have a good record on this, he thought the way Texas judges were selected was lamentable, particularly since many of his appointees have been defeated, I suspect. As a person who had litigated in the Court in connection with his business career, my record on that was key to my being appointed.

The Republican Party at that time had generally been on the record for changing the way judges are selected because it’s generally the party who’s losing in Texas that is the most perceptive about the fact that we are at a competitive disadvantage with other states and in recruiting new businesses and all because of judicial selection. We don’t serve the public well by having these massive partisan sweeps that defeat dozens or hundreds of judges at a time. It was not unpopular. It was not a politically courageous thing when I served to be for judicial selection reform. But it was a politically difficult thing to accomplish, as seen by the fact that Governor Koch in 1875 said, “Go ahead and vote for the new constitution, people of Texas. I’ll get that lamentable judicial selection clause changed,” but he didn’t. He got elected to the US Senate, left, and here we are.

We need to unpack that a little bit. Our system of judicial selection is constitutional dating back to pre-1875.

The voters adopted it for the first time in 1849. We were the last state to join the union with an appointed judiciary until Alaska. We came into the tail end and the next year started a real national sweep towards elected judges. The reasons why are still being debated among law scholars who are interested in such things. We have elected judges from 1849 to 1866, then appointed basically and now we’ve had elected ever since. They were not partisan initially. They could have been but the parties were not. By agreement, they stayed out of the judicial races early, and in the lead up to the Civil War some of the races started becoming a test for more openly partisan races, and here we’ve been ever since.

I didn’t realize it had gone back that far.

Ballot Box

Judicial Selection: In the current system, as politicized as it’s become, many judges still run for reelection with no opponent.

Judicial races ordinarily are pretty quiet like watching toast. When there are political passions and nothing better to spend them on, the main thing I can think of was prohibition, where the press forced every candidate to be either wet or dry, regardless of whether your job was going to deal with that or not. Texas had some turnover because of the prohibition issue. There was a bit of this on labor issues in the 1950s. When you were in the ‘50s, you’re either for right to work or against it, and that spilled over to judicial races. Abortion has been the big one of my career where a lot of people want to know how you stand on an issue softly covered by United States Supreme Court rulings if you’re going to be a trial court judge in their state.

The canons put judges in a weird position on that stuff, too, which makes it even more difficult for a political campaign.

It may be more difficult. Most judges welcome the canon because the judicial function is different from a legislative function and your personal feelings should be irrelevant. Some of the most hard-nosed judges I’ve known in terms of enforcing the law and telling people to get out of the court are themselves Teddy Kennedy-type liberals who, if they were in the legislature, would be voting for a different scheme but they’re not. They’re judges and they apply the law and probably vice versa. Some conservative people on the bench would apply the law in a way that they would not vote for if they were in the legislature.

One thing that’s happened in my career is so many of the basic guiding legal decisions that used to be governed by common law have been codified. You’d see that, particularly in the tort area where we had 2 or 3 statutes, contributed to comparative negligence. I’ve tried maybe the last contributed case in the state of Texas in 1981 but we’ve had comparative negligence since 1973. There were a few statutes of contribution, things like that but, by and large, all the rules were made by judges. Now, they’re all made by the legislature and the judges only have a few policy decisions to make.

When we had Justice Green on, his main stance when it came to judicial selection reform was needing to take the money out of politics. Needing to take the money out of judicial races is probably a better way to say it just because in his view, I believe, he described it as something like, “It seems unseemly and people tend to think that they’re entitled to something if they contribute a lot of money to a particular candidate’s campaign.” He told a chilling story about how someone he knew and had been friends with tried to leverage that relationship into insider information coming out of the Texas Supreme Court. It ruined the relationship. I assume you agree that money is the big problem here. There’s probably a lot more to it but I’d be interested to hear what your overall philosophy is on the need for change.

Certainly, while I was in office, I was very worried about the money and Justice Hecht and I, along with several other candidates of both parties and Judge Hightower in 1988 for that matter, and Judge Cook. We imposed a voluntary cap because we were very concerned about large dollars in the Supreme Court race. The person I was running against had taken $120,000 from an oil man who had a case pending in the Court at the time of the contribution and voted differently on rehearing than on the original case. I served with that judge and I don’t believe the contribution affected his decision.

I never alleged that it did, but we sure ran a lot of ads saying it looked bad, and it did look bad. The legislature put in the caps that are voluntary, but most people outside of South Texas sign up and abide by those caps. That solves some of the money problems. It’s an entirely different constellation of facts than it was when I was running because when I was running, most people still got their news from a local source. There was a lot of ticket-splitting. The only real sweep here that people think is, “I’ll send a message to Walter Mondale or I’ll teach Bill Clinton a lesson,” and vote the straight ticket the other way.

There was a lot of ticket-splitting and judicial races and newspaper endorsements, even bar endorsements, made a difference. The candidate endorsed by the one who won the most votes in the Houston bar poll generally won a downballot race. Now, there’s no positive effect from that. There’s a few curmudgeons who voted against all the lawyer PAC candidates, and that’s it. In one sense, there’s less need for money now than there was when I was running, probably, but in another sense there’s more need.

If you’re going to make any impact at all on the election, you got to get your message out in a campaign environment in urban areas that includes dozens or hundreds of other candidates. That’s almost impossible to do. I’ve never thought an anonymous judicial race, like let’s say you sign up and nobody spends any money, and we’ll see what happens is a service to the public, either at all. It does seem to me that the qualifications being rather minimal like the first time you need to have seen the courthouse is when you go in to take the oath. It’s a huge problem. The party sweeps are a huge problem. And the perception of money, as opposed to the reality, is a huge problem.

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I’ve never had any problem with a lawyer in my 23 years on the bench thinking that giving to me entitled them to something or that they were likely to get something. I did have problems with non-lawyers. Particularly, people who are not used to judicial candidates running. People from out-of-state who would assume that a contribution gave you an entree to make a phone call or write a letter. You had to explain to them or send them a copy of the code or something. It didn’t work that way. They were only contributing to have a judge who would listen to their argument and listen to the other side’s argument. Those people didn’t tend to give again.

What year was it that that 60 Minutes profile came out that really stirred things up?

December 6, 1987, 7:00 PM Eastern Time. They had filmed that in the fall of 1987, largely at the behest I think of the Texaco Public Relations Department because it came down in the wake of the Supreme Court declining to hear the appeal from the huge verdict for Pennzoil in Harris County. What was, at the time, the largest civil judgment ever. It’s still a very famous case. At any rate, they were filming at the judicial section meeting that was in Corpus Christi and Joe Jamail was being filmed a lot.

He kept trying to get me to come over and say hi to him and did not understand why I didn’t want to say hi. The people who went over there and got the big bear hug from him were on national TV with the intimation that he was the only lawyer there and he was there to buy judges. Now, he was there as part of the Texas Bar Foundation. Maybe 40 lawyers were there. Nothing in the 60 Minutes show was incorrect but it was powerfully put together. I’ll just say that. It’s still on YouTube and the younger generation of lawyers should certainly look at it.

I bought a copy of it. It was $50, $100, or something and we showed it, for instance, at the Republican state convention. We piped it through the hotel on one of their channels 24 hours a day. We used excerpts from it in our campaign ads. I’m sure 60 Minutes was highly upset about that. They sent us a letter the Friday or the Saturday before the Tuesday election asking us to cease and desist with the use because it was a copyright violation and we’d been using it for almost a year.

The title of that was Justice for Sale?

Yes. It was with Mike Wallace. It was a pretty hard-hitting piece because it was about the fact that there were huge sums of money being given been given by a handful of people. My opponent, for instance, had raised $2 million and over a million of it was from 50 donors. About fifteen of those donors had $1 million in independent contribution that was to elect somebody to the State Senate in Bexar County and other candidates. The other candidates, which 99% of them were Supreme Court candidates. They had ads showing somebody who was supposed to be me taking bags of money, and they were nasty ads.

A lot of the people who are for strict campaign contribution limits don’t realize that there’s a First Amendment right of speech for independent expenditures for whatever you want to say. Those are not subject to any code of judicial conduct or any other screening. When Texas gets to be a genuine two-party state, again, at the statewide level, you will see those kinds of ads. In Michigan, Ohio, Pennsylvania, Illinois, and Mississippi, they blight the air with extremely unfair allegations that you can’t hold the candidate responsible for. Sometimes, they’re so blatant they backfire against the person they intend to help. As former Chief Justice Prather of Mississippi, who had the US Chamber of Commerce come in and do such a trash job on her opponent, which she didn’t want this to happen, it backfired and she got beaten.

That’s certainly a complex issue and it’s not just about the money, as you point out. I’m wanting to make sure there’s a qualified judiciary coming to the bench dealing with the negative impacts of party sweeps. We’ve certainly seen that in the last couple of cycles here in Texas.

Handshake

Judicial Selection: Once the judiciary becomes solidly ensconced in one party, the judges elected by that party get along well with the local political leadership.

We didn’t have any Republican judges until Clements became governor, so that made it easy.

Everything was a party sweep.

There were 35 races in Harris County for District Judge. I remember this well. Thirty of them were won by the Democrats and most had a Republican incumbent. Starting in 1982, there have been periodic sweeps and they went back and forth in the ‘80s and ‘90s. For about ten years, it was only Republicans starting in ‘94, which was a massive Republican sweep. Republicans knocked off most of the rest of the Democratic judges outside of the large areas outside of South Texas for the next 10 to 12 years and then since then, more often been Democratic sweeps than not.

When you hear different models thrown around as possible alternatives to the current system, and I know that you are very well versed in these different models and we’re happy to talk about those. I wanted to point out one thing that came to mind. I mentioned the interview with Justice Green but we also had Justice Gina Benavides on the show and the subject of judicial selection happened to come up with her too. She felt very strongly, I wouldn’t say it’s quite the opposite on all fours, but her view of it is to take away the power of the voter in selecting judges very likely would tend to disenfranchise the minority vote if I’m accurately rephrasing that, Jody?

Something like that.

That was a perspective that I’m not sure I had heard quite that way before. I’m happy to visit about that but this would be a good time to transition into the Texas Commission on Judicial Selection which is something you’ve been very deeply involved in up to now. Can you tell us a little bit about the Commission? How it got started and what its role is?

I’ll do that but I do want to comment on Justice Benavides’ perspective. There was a minor push for judicial selection reform in the last session of the legislature, a group called the CJET committee. It was a committee pushing merit selection and I got a little traction which ended up as things with a little bit of traction so often do in a study committee. Four appointed by the governor, four by the lieutenant governor, and another four by the speaker, one by the Chief Justice, one by the presiding judge of the criminal court, and one by the State Bar. Hecht appointed Chief Justice Jefferson, and Presiding Judge Keller appointed me to this commission.

It met for a year at once a month and then had a series of virtual hearings around the state to take testimony and wrote a report. The four appointees appointed by the lieutenant governor were pretty much for no change. They all stood pat. The House was split. All of the governor’s appointees and the judicial appointees were for a change in the system and probably a change to appoint initial appointment and then retention elections. The bar appointee was for stand pat. If you add that up, it came up to pretty much a standoff. The report said while the system’s not working very well, it ought to be changed, and you all legislature figure that out and let the people vote on it. There was no particular recommendation for anything. They were against non-partisan and merit selection did not get a majority. The appointed retention election system got a 7-7-1 tie. I thought it was a bit of a letdown experience but everybody learned quite a bit about the plusses and minuses of each system.

At my insistence, we wrote every chief justice and every court administrator in the nation to get their perspectives on their own system and how they could be better. These weren’t private documents so I guess I should have known that almost all came back saying, “Our system is the best.” A few judges and elected systems said we do need some better way to police the money but pretty much everybody that was elected was happy with it. The elected opponent was happy with the appointed. The polling data came out inconclusive. It’s all about how you ask the question. Would you like to vote on hundreds of people and you have no idea whether they’re qualified or not and let them be a judge that can take away your life, liberty, and property? People would say, “No.” If you said, “Do you want some pointy-headed people who think they’re better than you choose your judges for you?” People were against that too.

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All in how you ask the question.

It’s always in how you ask the question, but COVID has made this a bad session for any kind of complicated initiative because by the time you plug the budget hole, do redistricting in 36 hours, and take care of other emergencies that have arisen this is not a good year for a new initiative in Texas, particularly something as complicated as a constitutional. I think some judge on our Court, I would say, Judge Garwood, I’m not sure that’s right, said, “There are plenty of ways to select judges and none of them are any damn good.” That’s probably true because we’re asking the political system to come up with a non-political person who, at the same time, has some political astuteness. It’s tough to do.

Judge Enoch said about the wisest thing I’ve heard on the whole issue, which is, “You cannot take politics out of selecting judges. You can take politics out of deciding whether to keep a judge in office or not.” That’s become a touchstone to me. There’s a lot of ways of electing a judge and they need money to get that message out because you want an informed voter. There’s ways of appointing judges, but inevitably there’ll be a political dollop in there. The question is how do you keep the judge who’s doing a good job and not keep a judge who’s doing a bad job?

I think the retention election. They’re using close to half the stakes. There are some bad judges retained and probably shouldn’t be. There are not too many good judges that lose a retention election. Occasionally there’s a single-issue vote and there are some bad judges who get voted out. More important, maybe even than that, is the effect on the judge in the current system as politicized as it’s become. Over half of our judges still run for reelection with no opponent and a sizable number of judges, particularly in smaller counties, were initially appointed and have never had an opponent. That’s a Soviet-style election.

Talking about the people’s right to choose, the people have to have a lawyer who is willing to file for office more than one year before they would actually take that office and stand presumably against an incumbent judge they’re going to appear in front of and make their living for, for more than a year. Many of our rural judges are not intimately familiar with the glories of a contested campaign. It’s true in an urban area. Once the judiciary becomes solidly ensconced in one party and the judges who were elected by that party get along well with the local political leadership, they don’t very often draw an opponent. The bar is not as well organized as it used to be. That’s not saying anything too controversial. It’s just true. Even if a lot of lawyers don’t like the judge, they’re probably not going to be opposed.

The people need a right to decide and you’re taking away the people’s right to decide is propaganda that’s misleading because, in a retention election system, every judge is voted on. Most of those systems provide a mechanism of gathering data about the judge about how many cases they try, how many opinions they write, and how often they’re reversed. There’s polls of lawyers, jurors, and witnesses, and all that’s put up on a website. You can decide if you think this judge ought to step down and let’s throw this thing into the appointed process and see what happens. In other words, would you trust the world against the person you have or not? About 97% of the time, people go with the devil they know but it is a process. I think it has a good effect on an incumbent judge.

I do worry about the diversity and back in the ‘60s, ‘70s, ‘80s, merit selection states had more diversity than elected states. That’s not true anymore. There are certainly ways around that and one way is to do what several states like Illinois, Pennsylvania, New Mexico do, which is you have an initial open election and then the judge stands for reelection in a yes-no retention system. Those elections would be more meaningful. Particularly if they were nonpartisan because there are 200 people on the ballot and you’d have to be a real nerd and probably an unemployed nerd to know the relative merits of all those candidates.

If you only had two judicial races on the ballot and you didn’t have an easy crutch like a D or an R to go on, a voter who wanted to be informed or probably get informed. If you weren’t informed, you would skip that race. There’s a lot to be said for the initial election system. Inherently, appointed judges tend to avoid the very worst people at the bottom but sometimes the most qualified person is not going to get that appointment either, because they might have sharp elbows or have made some enemies somewhere along the way.

To your point, either way under the appointment system or the nonpartisan election system there isn’t a way to take politics out of it entirely. It’s always going to be a factor under any system.

Courtroom

Judicial Selection: Sometimes, the most qualified person to become a judge will not get that appointment.

Obviously, when you’re an appointing authority, be that a governor or committee, they’re going to want to appoint their friends more than their enemies. In an elected system, the US Supreme Court has made quite clear that you cannot closely police what a candidate chooses to say. If a candidate chooses to say, “You should vote for me because I will take off every afternoon, go down to the border, and help Donald Trump build his wall.” You can say that as a candidate. We had candidates who had Trump’s picture a lot bigger than their picture, for instance. And no doubt candidates put Obama and Biden’s picture bigger than theirs. I just didn’t see those. At any rate, because you can’t police those statements and the only effective policing comes through recusal motions, which are perhaps not as easy to file and not as favored by parties and their lawyers as the Supreme Court justices imagined they are. That’s somewhat inadequate policing. If you have an election, politics is going to play a role but somebody is going to think that will help them win.

Looking back to the idea that this is a constitutional issue, considering the split among the Commission and you mentioned the difficulties faced in the current legislative session where this rather clearly isn’t going to rise, I don’t think to the top of the priority list. It’s worth pointing out that, if I remember correctly, we are talking about a constitutional amendment to change this process. The vote required for that, I believe is 2/3.

Two thirds in each House of the Legislature and then a majority of the voters. We’ve had that 2/3 in one House or the other a number of times over the past 30 years. Never had it in both Houses. The closest we came was my last session as Chief in 2003 when we passed the Senate with a somewhat watered down plan and we counted a majority in the House. A Senate political party at that time put pressure in the right places and no hearing was held in the House of Representatives, so we didn’t get a vote. There are things that can be done by a simple vote of both Houses of the legislature and the signature of the governor. That would include nonpartisan elections, it could include cross filing, which we only did in Texas, once in 1952. It’s still being done in New York, and maybe California, where in those states people can file in multiple primaries. You could also require judicial candidates to file in every primary.

Imagine in a day of YouTube, the salutary effect it would have on candidates if they appeared at a Democratic event and a Republican event in the same night. Their speeches might be more on what the judiciary is really about and not what it’s going to do for you as soon as I get into office. I’ve always been a strong proponent of cross filing but if somebody listening would join in that pitch, we could double the support. We could also affect ballot access by majority vote, which of course has been done for the Courts of Appeals and urban district courts with the signature process.

That signature process has been a huge boon to the Court of Criminal Appeals, particularly where you used to have open races that would attract 7 or 8 candidates. It was frequently who drew the best ballot positions in the largest counties determined who was going to be the nominee of a party for those races. You’ve got to be a serious person to get 50 signatures in each of the fourteen appellate districts. The signatures certainly keep last-minute candidates out of district court races in the urban areas, but you could look at certain levels of judicial education or attainment as a ballot access issue. That might have some legal problem but it might not. The signatures have never been challenged as a constitutional impediment to serving. They’re just an impediment to getting the chance to serve.

With qualifications, there is a constitutional dimension to judicial qualifications. Could the legislature tighten those without having to amend the constitution?

Only through ballot access. But, I must say, if any constitutional amendment would pass, you have to have either been a judge of another court of record or appeared in a court with a client. The type of court that you want to serve in, I think that would pass. Whereas a lot of emphasis is on longer terms and that fails in every state it has been tried in. Now, there’s a constitutional limit proposed in this legislation that would double the time. You’d have to go to eight years as a lawyer before you can run for District Judge. In the past, it’s been a real inflection point for people that 6th, 7th year of their practices. Particularly for the larger firm, it’s when you learn from people older and wiser than you that your talents might lie in an area where you don’t have to be as aggressive or as much of an advocate and you think, “That sounds like a judge.”

A list of people who’ve started at a relatively young age as a district judge in Texas and gone on to very prominent positions like 2 of the last 3 Chief Justices of the Supreme Court, and the number of these circuit judges or judges on other federal benches and state appellate benches, is pretty long. I’m particularly offended by somebody saying, “If we’re for lengthening the number of years you have to have held a law license without it being suspended, we have solved the problem.” That offends me because I don’t think that’s our major problem.

There are some attorneys that become less qualified the longer they practice. I’m not sure that solves that.

Elected states having more diversity in choosing judges than merit selection ones is not true anymore. Click To Tweet

It’s much too crude a metric to constitutionalize it. I’m glad we have some years of practice. In California, there have been people elected to the bench in their first year of practice. They probably haven’t suffered enough on the other side of the bench. The ideal judges and certainly I wouldn’t be opposed to six years for a district judge, and maybe not eight, because the inflection point that I mentioned earlier is coming later and later now in practice. I wouldn’t want the age requirement to be so long that people are making so much money in practice that they don’t want to give government service and the judiciary a try. A lot of people go at all stages of their career to serve in state or federal government for a short term. You’ve saved up enough money to be deputy general counsel of an agency for two years and that helps your practice, etc., but generally, when we’re asking somebody to be a judge, it’s a much longer commitment. If they’ve got used to the big bucks but they’re still rather young, I don’t know how many of them we’re going to get.

The old model when I started practicing was 55. Your kids were out of college, you’d salted away some money, and you went and spent your last 10 or 12 years in the judiciary. I think that the increasing political demands have made people at that stage and place in their lives and careers somewhat less anxious to become a state judge. Likewise, in the federal judiciary, that’s become such a high stakes poker game that presidents increasingly want younger people who will stay longer or they will have longer. The model for when I started practicing law is you capped off your career on either the state or the federal bench has changed rather dramatically and I don’t think we’re going to be able to put it back in place with a constitutional amendment.

The Texas Commission on Judicial Selection, is it basically sunsetted with this current legislature or does it extend beyond?

It was supposed to file a report by December 31, 2020 and wither away, but our report did offer to stay and do further study if the legislature wants that. I’ve been watching my email and see no requests that we will continue to study.

I reviewed the roster of that commission and I believe former Chief Justice Jefferson is on it. There are a lot of other dignitaries who have the experience to speak on this issue, it seems to me. It’s a shame that it seems all that effort would go for not but probably somewhat telling that the vote was so evenly divided in terms of what the recommended systems might be. It sounds like there’s hope for the future in terms of other ways of being able to deal with the things that we see as the negatives about the judges in Texas.

Some of it comes down to the bar educating the public on judicial selection and judges and what the courts do. A lot of voters don’t necessarily have the context and it’s become so easy to let a political party be your deciding factor for a judicial election without any real thought to the consequences of that.

I’m sure the causes are multifarious but the decline in civics education and if we tried to have civics education, there would be a political battle over what is taught, even in the judiciary. I digress to under aggression but in 2008, a poll was done. A lot of questions were about the Obama-McCain race, and one was judges. Nearly all the McCain voters thought that the judges’ job was to apply the laws that were passed by the popular branches of government, come what may. Nearly all the Obama voters thought a judge’s job was to see the justice was done. That was the very name of their job after all and not to care too much about what some piece of paper said in the past.

That split you can multiply in a whole number of areas across history and civics, but the decline of civics has made it where I think it’s news to a whole lot of people that judges see themselves as having a fundamentally different role than other government officials. You’ve got that problem. I also mentioned the decline in local news. Everything is nationalized now. It’s more exciting news than what your local school board is doing. It’s going to attract a larger audience to watch Fox or MSNBC skewer somebody on a nightly basis. That’s where people are getting their news. It does not help them be informed when they go into that ballot, but particularly in a large urban area and see a mass of names that you have to sort through.

For courts that people don’t have any sense of what they do, there are very few people outside of the bar that could name the nine justices on the Texas Supreme Court or explain what that Court does.

Man reading book

Judicial Selection: Increasing political demands have made people in their later years to be somewhat less anxious to become a state judge.

Even Ronald Reagan who knew something about government, when he introduced me at the Mesquite Rodeo in 1988, he said in these immortal words, “Chief Justice Don Phillips is joined with Vice President Bush to lead the war on crime here in Texas.” It was startling. I was touched but I didn’t want to be held responsible for any failures on the war on crime, if there were any, despite George and my giving our best shot on it.

We usually ask for a war story but that’s pretty darn good.

That’s going to be a hard one to top, I have to say. Any behind-the-scenes stories you can tell?

I have a story. We went to Waco. We started visiting around the state at law schools and now other schools because the conference for Chief Justice said this was a good idea and it has been. Generally, the judges go and teach a high school class during the day, meet with the bar at night, and hold arguments the next morning. Anyway, we were in Waco and we went back to the makeshift conference room. We put on our robes and then we came back in and sat back down. We didn’t all sit at the same seats. I was sitting in Abbott’s seat. We got up to leave to go to lunch with the professors at Baylor and I put on Abbott’s coat.

The sleeves only came to about my elbow. It seemed puzzling to me that I’ve grown that much in two hours of argument but I went on and started out the door and Abbott came up and said, “Judge, do you notice anything unusual about the way you look?” I hadn’t thought much about it, and he said, “Look at your coat and look at mine.” His sleeves were past his hands. I do remember that but there are probably a lot better ones but I’ll leave you with that.

I like that one. That’s a good one to end on.

I do too.

Thank you so much. This has been such a great history and understanding of judicial selection in Texas. We really appreciate you coming and sharing your perspective with us.

I’m delighted to do it. I’m glad you all are doing this. For people who might be interested in this kind of thing, this is a good thing to be interested in.

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ABOUT CHIEF JUSTICE tom Phillips

Chief Justice Tom Phillips

Thomas R. Phillips, retired Chief Justice of the Supreme Court of Texas, joined the Austin office of Baker Botts in September 2005. His practice concentrates on issues and appeals, with a particular emphasis on matters that are in or headed to the Supreme Court of state courts of appeals.

After serving as a law clerk to Justice Ruel C. Walker of the Supreme Court of Texas, Mr. Phillips practiced law in the trial department of the Houston office of Baker Botts before his appointment as judge of the 280th District Court in Harris County, Texas.

From 1988 to 2004, he was Chief Justice, winning four statewide elections after his initial appointment in that office.

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