JUDICIAL SELECTION John L. Hill, Jr. Former Chief Justice Locke, Liddell & Sapp 600 Travis, Ste. 3400 Houston, Texas State Bar of Texas LITIGATION UPDATE INSTITUTE January 19-20, 2001 San Antonio, Texas 7 Houston 001000/00000 483252 v 1
FORMER CHIEF JUSTICE JOHN L. HILL, JR. was born in Breckenridge, Texas on October 9, 1923. He graduated from the University of Texas School of Law with honors in 1947. Except for the eleven years he spent in State Government, Mr. Hill has been a practicing trial lawyer. He served as Secretary of State of the State of Texas from 1966 to 1968. He was elected Attorney General of Texas in 1972 and served in that office until 1979. In 1984, he was elected Chief Justice of the Supreme Court of Texas, becoming the first person in Texas history to serve the people of Texas as Secretary of State, Attorney General and Chief Justice. Mr. Hill is currently a senior partner in the Houston based law firm of Locke Liddell & Sapp LLP where he heads the litigation section. In his earlier practice in Houston, he was a name partner in Hill, Brown, Knonzer, & Abraham. Mr. Hill is a member of: American College of Trial Lawyers International Academy of Trial Lawyers International Society of Barristers Order of the Coif Legal Society Phi Delta Phi Legal Fraternity Chancellor's Society, University of Texas Law School Commissioner, Texas State Lottery, 1997-1999 Member, State Bar Committee on Federal Judicial Relations Fellow of the American Bar Foundation Fellow of the Texas Bar Foundation Former Chairman, Organized Crime Prevention Council and Federal-State Law Enforcement Council Former Vice-Chair, Texas Judicial Council President, Texans for Judicial Excellence Advisory Board, St. Luke's Methodist Church and member of Board of Trustees Recipient, University of Texas Distinguished Alumnus Award Recipient, American Judicature Society Herbert Hawley Award Recipient, Leon Green Award for Outstanding Service to the Legal Profession Recipient, Freedom of the Press Award and the Marc Gold Award for Outstanding Service to the Mentally Retarded Recipient, Mr. South Texas Award Recipient, University of Texas Law School Life Time Achievement Award Member, National Advisory Board, Texas Heart Institute Member, Rotary Club of Houston Recipient, Joseph Jaworski Leadership Award Recipient, Thomas Jefferson Award from the American Architects Institute of Houston Recipient, Karen H. Susman Jurisprudence Award Recipient, Lola Wright Foundation Award for Legal Ethics Houston 001000/00000 483252 v 1 0
JUDICIAL SELECTION BY: JOHN L. HILL, JR. The other day I saw a headline on the editorial page of the San Antonio Express which proclaimed: ray of hope remains for judicial reforms. In light of the ups and downs of judicial reform efforts during recent sessions of the Texas legislature, a ray of hope is quite welcome as many thoughtful jurists, practicing lawyers, editors, and legislators prepare to confront this vital issue in 2001. It was during my campaign for Chief Justice of the Texas supreme court in 1984 that I first began to question whether our present highly expensive, partisan election system was the best way to select judges. I could tell that large campaign contributions from lawyers and law firms and the intense emphasis on whether a judicial candidate was a Democrat or Republican was definitely on the rise. Following the 1984 elections and upon assuming my duties as Chief Justice, I expressed my concerns about big dollar, partisan elections to my counterpart from other states who uniformly urged me to lead an effort in Texas for the adoption of a merit election system similar to the Missouri model and used by a majority of states. It was their opinion that this was the best way to minimize the impact of excessive campaign expense and to move in the direction of more judicial independence. When, in 1987, I made such a recommendation to the Texas legislature, I was met with staunch Houston 001000/00000 483252 v 1 1
opposition from most of my colleagues on the court. In January of 1988, I decided to resign as Chief Justice and return to private practice with a law firm that would support my efforts to devote some quality time to bringing forward a constitutional amendment implementing a form of merit election for Texas judges. With the assistance of George Christian, a prominent lay political leader based in Austin, we established what is now known as Texas for judicial excellence, a non-profit organization devoted to improving our Texas judiciary and bringing merit election to Texas. Since we formed this organization, judicial election reform has been a major issue in each biennial legislative session. As a direct result of our efforts and the strong support of major newspapers, the Texas legislature in 1995 adopted the first-ever judicial campaign finance reform act. This bill established limitations on contributions to judicial candidates, restricted the time period in which sitting judges could raise money, and required better public disclosure of both contributions to judges and judges relationships with the attorneys who practice in their courts. This was a definite step forward. In 1995, under the leadership of then Lieutenant Governor Bob Bullock, the Texas senate passed a comprehensive judicial selection reform bill. This bill would have instituted a merit-based system for the appellate courts and adopted a modified elect-retain plan for district courts in major metropolitan areas. Although the bullock plan stalled in the house of representatives, it successfully set the tone for ongoing efforts to change the system and proved beyond doubt that the legislature was willing to take action. Houston 001000/00000 483252 v 1 2
In 1997, the Texas house got into the act by passing a bill calling for non-partisan election of appellate judges. Although our organization generally does not believe non-partisan elections are the best solution to our problems, we were still pleased that the house took the issue seriously and proposed a serious solution. In 1999, the Texas senate once again passed a constitutional amendment establishing an appoint-retain plan for the appellate courts. The house committee on judicial affairs countered with a different and more complex version of the plan, which would have merged the Supreme Court and court of criminal appeals, appointed some judges subject to retention elections, and elected other judges from geographic regions. This rather cumbersome plan did not make it to the house floor, and the effort died. Nevertheless, it is clear that judicial election reform is alive and well in the legislative process, despite premature announcements of its demise. While the vast majority of supreme court justices, Democrats and Republicans alike, who have served during the past decade do support merit election, I wish we had stronger leadership from other judges and the state bar on this issue. However, I am gratified to see this leadership developing and am encouraged that it will be there in 2001. If it is, we will prevail. Senator Robert Duncan (R-Lubbock) has expressed his intention to push hard again for his plan to change the election system, at least for the Supreme Court, Court of Criminal Appeals, and Courts of Appeals. As I mentioned previously, in 1999 Duncan persuaded the senate to pass by a two-thirds bipartisan vote his constitutional amendment providing for gubernatorial appointment, senate confirmation, and retention elections for the two high courts and the intermediate courts. His Houston 001000/00000 483252 v 1
co-sponsor was senator Rodney Ellis (D-Houston), who has worked diligently on various aspects of judicial election reform and campaign financing reform and a need for more diversity for a number of years. Despite the tireless efforts of representatives Rob Junell (D-San Angelo), Toby Goodman (R-Arlington), Juan Hinojosa (D-McAllen), and Harold Dutton (D-Houston), the Duncan-Ellis amendment did not make it through the house before the end of the session. However, the senate s action marked the second time in three sessions that a comprehensive reform plan had made significant progress through the legislative process. Under the leadership of Senators Duncan and Ellis and representative Junell, the bipartisan cause of judicial election reform continues its forward momentum. It will be very helpful to the renewed effort in 2001 that every member of the present Supreme Court is supportive, at least in so far as adopting the senate plan for an appoint-retain system of selecting the 100 or so appellate justices and judges is concerned. Unlike the court I served on more than a decade ago, this supreme court recognizes the imperative need to change the system, minimize big money contributions, and move toward a non-partisan, merit-based, retention election method of electing our judges that promotes judicial independence while retaining judicial accountability to the electorate. Chief Justice Tom Phillips in particular has been a stalwart advocate of reform. The key to meaningful reform, in my opinion, is the Duncan-Ellis approach, which calls for gubernatorial appointments to fill vacancies on the appellate bench, followed by periodic retention elections. If we need to indulge one regular election cycle before retention elections kick in, we can accept that as a necessary political compromise but I personally would very much prefer to go straight Houston 001000/00000 483252 v 1 4
to retention election at the first election cycle after the appointment is made. This is what the Duncan-Ellis bill currently provides, and we will fight to pass it in its pure form. I would also like to warn against proposals that sound like reform, but don t do the job. As a solution to the problem of big money influence in judicial campaigns, non-partisan elections alone fail for two reasons. First, in the absence of any other indicator of a particular judicial candidate s qualifications or judicial philosophy, the party label is about all a voter has to go on. Merely putting a name on a ballot in a non-partisan election doesn t solve the problem of lack of voter knowledge of the candidates, and even makes the problem worse. A merit-based plan solves that problem by requiring a rigorous screening process by the governor and senate before a candidate ever reaches the bench and the ballot to begin with. Second, non-partisan elections don t work as well because the candidates require even more campaign money to get their name and message out to the voters. Such elections will actually increase the amount of campaign money flowing into the judicial races, exacerbating the already serious appearance of impropriety associated with judicial contributions. Another proposal that has competed for legislative attention is the election of judges from sub-districts. This plan has appeared in a variety of forms, from single-member district elections (like legislators have) to multi-judge districts composed of larger geographic regions, such as county commissioners precincts. Although this plan has usually been discussed for the district courts, it has also been proposed for the appellate courts. Houston 001000/00000 483252 v 1 5
The avowed purpose of sub-district plans is to increase diversity on the bench. There is absolutely no question that increasing diversity must be accomplished in any judicial reform plan. Clearly, the current partisan election system has not been very successful at promoting a diverse judiciary, even though it survived a voting rights act challenge several years ago. However, in our opinion subdistricts are not the answer. First, they make judges accountable to an even smaller number of voters than they are now, increasing the chances of special interest influence. Judges should never be placed in a position of representing one part of town, especially if the parties appearing before the judge are from another part of the county. Second, judges do not represent constituencies the way legislators do. They have enormous, plenary power over people s lives. They must represent only the rule of law. But this doesn t mean that we cannot make vast improvements in providing judicial diversity. Interestingly, studies by the American judicature society have consistently proven that the best way to gain more diversity is through a merit-based selection process. In fact, more minority and women judges have reached the bench through merit selection than any other selection method. Minorities generally also fare better in retention elections than they do in partisan, contested races. This is because retention elections shield judicial candidates from the vagaries of straight ticket voting, which completely disregard the candidate s unique abilities and qualifications. We strongly believe that the merit system proposed by Senators Duncan and Ellis will increase minority representation on the bench and will result in the retaining of those judges. With the Houston 001000/00000 483252 v 1 6
governor and the senate riding herd on judicial appointments, we are confident that our judiciary will much better reflect the state s ethnic and geographic diversity than it does now. It is important to re-emphasize that the merit election system we are proposing for Texas has significant minority support in the legislature. Indeed, we could not succeed without it, and we wouldn t want to. We want a plan that is supported by all Texans and that gives all Texans a stake in this most important branch of government. I strongly urge everyone to study the proposals that senators Duncan and Ellis will introduce in 2001 and get behind their efforts to reform our election process for appellate justices and judges. Working together, we can pass their legislation and bring this matter to a vote of the people. I predict the voters will overwhelmingly approve this constitutional amendment if given the chance. It has been the popular refrain of political partisans and other opponents of judicial reform that Texans don t want to give up their right to elect judges. What these pundits don t tell you is that in every voter survey we have taken during the past ten years, nearly eight in ten voters want the right to vote on a new system of selecting judges. Moreover, support for a non-partisan, merit-based selection system generally runs in the 60 to 70 percent range. There is simply no substance to the argument that Texans don t want to change a system that forces judges to ask the very people who practice in their courts to fund multi-million dollar statewide campaigns. It should also be remembered that virtually every major newspaper in the state has consistently endorsed a merit election system for years. While it might be argued that newspaper editorials don t carry much weight in this digital age, the fact is that editorial writers are still a key indicator of public Houston 001000/00000 483252 v 1 7
opinion, and public leaders respond to them. We could never have convinced so many members of the legislature to support our efforts without the strong support of the people who buy ink by the barrel. Together with the far-sighted legislators who have taken up this issue, the editorial writers of this state deserve a major share of the recognition for keeping this issue on the front burner in the face of determined efforts to kill it. The voters are way ahead of some of their political party leaders on this issue. They simply need to be given the opportunity to make their voices heard in a constitutional amendment election, at least with regard to the appellate courts. As far as our trial bench is concerned, especially here in Harris County, we are fortunate that governor bush continues to make good appointments, based on qualifications and not on politics, and with a decent concern for the need for increased diversity and judicial independence. Even so, I believe it would help stabilize and improve our Harris County judiciary if we moved to a retention election system following appointment. Under the Duncan-Ellis plan we will constitutionalize the concept in Texas that all judicial vacancies are to be filled by the governor, with the advice and consent of the senate. If we all pay closer attention to this process, and encourage our brightest and best to apply for appointments and encourage our governor and our senators to continue to be openly vigilant in pursuit of quality, the initial appointments should be well received. Retention elections every four years thereafter encourage accountability and good judicial performance. Houston 001000/00000 483252 v 1 8
Finally, I have this special message for our younger lawyers. Every generation must take its stand for the fair and impartial administration of justice. We have a good judiciary in Texas but we can make it better by adopting a constitutional amendment that enacts a sound merit election system. Give us your leadership on this issue. Houston 001000/00000 483252 v 1 9