Austin American-Statesman
Sunday, November 8, 1998

A better way to choose judges?

'60 Minutes' revives debate on Texas' partisan elections

BY Osler McCarthy
American-Statesman Capitol Staff

No sooner had former Chief Justice John Hill uttered the last words of a long-dreaded "60 Minutes" story last Sunday on the Texas Supreme Court than the publicity machines started churning.
This year's sequel to a 1987 investigation of the court was finished.
Now those who counted on a repeat reaction to the 1967 story, which changed the makeup of the court, and those who feared one shoved Andy Rooney aside to get in the final word by fax.
Justice had been bought, one side insisted - and "60 Minutes" had just proven it.
Not so, said the seven Republican and two Democratic Justices. "60 Minutes" offered no such proof, nor could it.
Hill had told CBS correspondent Mike Wallace that the big-money partisan politics that fueled judiciary campaigns needed to end.
"Take politics, take money out?" Wallace asked.
"Out, out, out," Hill responded.
But the fundamental problem that Wallace identified seemed lost in the reaction.
Wallace had found a court openly accepting unlimited contributions in 1987, and he concluded last week that campaign contributions still posed an appearance of undue influence on the court.
Despite the reaction, the "60 Minutes" story relied on familiar sources expressing familiar criticism about the Texas Supreme Court's familiar conservative approach.
Campaign contributions had been Limited, yes, but a court that once favored people suing companies for personal injury and consumer claims in the 1980s now appears to favor defendants those people sue.
For Wallace, partisan election of judges was the root of the money problem.
Were it that simple.
In a statement issued after the program, all nine Supreme Court justices said they opposed "a system that forces judges to raise campaign funds" and noted that contributions had been capped and time limits had been imposed on when money could be raised before a race.
But state Sen. Rodney Ellis, D- Houston, one of the Legislature's persistent champions judicial-selection reform.
said even the most attractive alternative -merit selection of judges, with subsequent retention elections - does not rid the process of money or politics.
Georgetown University law professor Roy Schotland, a judicial-selection expert, agrees.
"If you're going to have elections," Schotland said, "you're going to have problems.
" One reason is that judicial races - once an almost exclusive province of lawyers - now attract business interests, he said.
The first "60 Minutes" story led to mostly Re- publican reformers winning court seats backed in large part by business and medical political committees that also drove legislative tort reforms.
Conservative interests in other' states have torn the page from the Texas playbook.
But the lawyers and special interests on all sides have helped polarize judicial politics.
"The average person has no more idea than a goose what makes a good judge or not," said Chief Justice John Thomas Boyd of Amarillo's 7th Court of Appeals. "There's got to be some better system."
Legislators will consider sever- al prospects in the coming session, beginning in January, but the past offers little hope for undoing a system erected by post-Civil War Reconstruction Texas.
A few states select judges by gubernatorial appointment, from candidates chosen by a bipartisan, broadly representative commission. In some of those states, a judge's term may be fixed by time or retirement or may be subject to review by the commission. In others, the appointed judge must run for election - open to challenge or running against his or her record in what is known as a retention election.
Only eight states elect their supreme courts by party label, and a handful more that have official nonpartisan elections allow political parties to endorse candidates.
That would change under a new state constitution that will be proposed next year by Sen. Bill Ratliff, R-Mount Pleasant, and Rep. Rob Junell, D-San Angelo, the heads of the budgeting commit- tees in the Texas Senate and House.
Ratliff said they envision appointment of judges - the exact method is left open - who would run unopposed in nonpartisan elections after that.
"What it amounts to is you don't force these people to take money from the people who practice before them," he said. "That's what '60 Minutes' was about. I think we all know that."
Judges and legislators are exploring the possibility of financing judicial campaigns by a levy on the legal profession.
Separately, Chief Justice Tom Phillips has appointed a committee of judges and lawyers to study judicial campaign financing rules.
But Ellis, bruised and scarred by fights to devise a way to elect more minority judges in big cities, sees little prospect of wholesale changes in the way Texas selects judges.
"I don't think Joe and Sally Voter give a damn what we think," he said. "I don't think the public senses the system is broken."
Count among them Gov. George W. Bush, whose support for the current partisan system has not changed, said Linda Edwards, his spokeswoman.
Ellis' point may be bolstered by a soon-to-be-released Texas State Bar poll concluding that Texans hold high confidence in their courts and hold the Supreme Court in highest regard.
But Hill, the former chief justice, told "60 Minutes" that partisan politics taints the system. "It's Democrats versus Republicans. which is ridiculous," Hill told Wallace. "There's no Republican justice or Democratic justice. There's just justice."
Austin lawyer Jan Patterson, elected Tuesday to the 3rd Court of Appeals, said the voters she met were confused and uncertain about judges elected as Democrats or Republicans.
"People want to know how our courts are working and whether justice is fair," Patterson said.
Critics of the system point to what happened to Boyd, the chief justice of the Amarillo-based appeals court and a respected Texas jurist.
Boyd, then a Democrat, faced the prospect of being challenged by a Republican and decided to switch parties.
"If I had run as a Democrat, I would have had an opponent and had to raise money. In all the years I've been a judge I never accepted one red cent," he said. "I've always been essentially nonpolitical, anyway."