Robinson is chief of the Chronicle's Austin Bureau
By CLAY ROBISON
May 1, 2004
The more things change, the more they stay the same.
Except for a Republican governor named Bill Clements, state government in 1988 was still mostly under Democratic control. Texans (the few who bothered to vote) elected their state judges, and members of the Texas Supreme Court were under attack for taking campaign contributions from special interests.
And, oh yes, Chief Justice John Hill, a Democrat, resigned in midterm, criticizing the money-driven, partisan election system and calling for change.
Now, Republicans are firmly in control in Austin. Texans (the few who bother to vote) still elect their state judges, and members of the Supreme Court are still
being criticized for taking campaign contributions from special interests.
And, last week, Hill's Republican successor, Tom Phillips, repeated earlier calls for scrapping the money-driven, partisan election system as he announced plans to step down in midterm.
It was, as some Texans like to say, déjà vu all over again -- but with a partisan twist.
Phillips, who, by necessity, has raised millions of campaign dollars, isn't being driven from office by the system. After more than 16 years presiding over the state's highest civil court, he simply decided it was time to do something else.
But like Hill, he wants the Legislature to replace partisan judicial elections with a system of gubernatorial appointments and retention elections. Appointed judges would have to win periodic voter approval to stay in office but wouldn't have opponents on the ballot. Hill and Phillips will have to keep waiting.
Some legislators want to change the system and have been trying for years. The appointment-retention plan -- or something similar -- would be a better way of choosing judges. But judicial selection is not a high legislative priority.
That is partly because the high-stakes war over control of the high court, which was raging when Phillips came on board, is now off the front pages of the newspapers. Elections for the Supreme Court are no longer competitive in a philosophical or partisan way.
Defense-oriented Republicans now hold all nine court seats, thanks to the doctors, businesses and insurance companies that have contributed millions of dollars to their campaigns -- and to Texas' recent partisan makeover.
The plaintiffs' lawyers whose campaign generosity once stacked the court with friendly Democrats now have to sit on the sidelines or choose the lesser evil (from their viewpoint) in the Republican primary.
At some point, the balance will once again change, but later rather than sooner.
Another hurdle to changing the judicial selection process is opposition from both major political parties. About the only issue on which the state Democratic and Republican leadership agree is that Texans should be allowed to continue electing their judges, and partisans, of course, prefer a partisan ballot.
For the record, Gov. Rick Perry also prefers the elective system, spokeswoman Kathy Walt said. The governor makes midterm appointments to judicial vacancies, and Phillips' pending resignation, effective Sept. 3, would give Perry his fifth appointment to the high court. One appointee, so far, has been unseated by an opponent in the Republican primary.
The biggest obstacle to change, however, may be the voters, who would have the final say because changing the judicial selection process would require a constitutional amendment. Public opinion polls, although inconclusive, have indicated many Texans want to keep electing judges, even though most people don't vote and many who do know nothing about the candidates.
The Texas Supreme Court, still in the hands of Democrats, received national, negative publicity in 1987 when CBS-TV's 60 Minutes highlighted large campaign contributions from plaintiffs' lawyers to justices and questioned whether justice was "for sale" in Texas.
Eleven years later, 60 Minutes paid another visit to Austin and concluded that the same question still clouded the high court. The only difference between Texas justice in 1998 and 1987, the program suggested, was the people wielding the influence, with trial lawyers being replaced by doctors, insurance companies and other business interests.
Phillips believes the Texas Supreme Court is a much improved body from what it was when he arrived, although some plaintiffs' lawyers and consumer advocates disagree. In any event, as long as special interests fuel justices' elections, there will always be a cloud of suspicion hanging overhead.