Is Texas Justice for Sale?

By Richard Woodbury/Austin

When lawyers in the Pennzoil-Texaco multibillion-dollar battle turned to the Texas Supreme Court, they were not approaching strangers. Since 1980 Houston Attorney Joseph Jamail and his firm, Pennzoil's victorious counsel, doled out $248,000 in campaign contributions to the justices. As for Russell McMains, Texaco's chief appellate lawyer in Texas, he has donated some $40,000 to members of the high bench, and his former Corpus Christi firm gave $150,000 more. Such cozy bench-polishing tactics are not illegal, since Texas is one of only nine states where virtually all judges are chosen in partisan elections. It also has no limits on campaign gifts. "The appearance," says State Senator Frank Tejeda, "is that perhaps justice in Texas is for sale." Anthony Champagne, a University of Texas political scientist, puts it more directly: "You contribute to your friends and hope your friends will take care of you."

It can certainly look unseemly. After the Texas justices declined to upset the pro-Pennzoil trial judgment and Texaco decided last month to settle by paying $3 billion, local court watchers were reminded of published estimates of the greater electoral largesse of Pennzoil's 23 Texas attorneys: they ladled out more than $300,000 to the jurists in 1986 alone. Now that case, along with the quickening torrent of lawyer donations to judges at all levels, is sparking what could be the first serious reform effort since the system settled into place in 1873. This week Chief Justice John Hill will take the extraordinary step of quitting the bench to lead a drive to abolish the elective process.

Hill, 64, a former state attorney general who will go into private practice, spent more than $1 million to get elected to the bench in 1984. But he came to believe that the "acceleration of campaign financing has become outrageous." He favors a merit-selection system, used in a number of states, under which the Governor selects judges from names submitted by a commission; the jurists are later voted up or down by the citizenry. Republican Governor William Clements is also pushing an appointive system, though only for the nine-member high court. "Texans have lost faith in their judicial system," he says. Clements charges that the court's popularly elected justices -- all Democrats -- have developed a "pro-plaintiff tilt" that encourages "virtually limitless judgments" and scares businesses away. Jamail, the state's king of torts, half concedes the point. "What kind of an ass would I be," he says, "if I didn't try to give back something that promotes the plaintiff's philosophy."

Critics contend that judges sometimes get too close to donors. Last June the Texas Commission on Judicial Conduct handed down unprecedented reproaches to two sitting justices. C.L. Ray was reprimanded for, among other things, attempting to get a pair of cases moved from one appellate court to another, which would have helped a San Antonio lawyer who had donated $20,000 to his campaign. Justice William Kilgarlin drew a lesser "admonishment" because two of his law clerks accepted an expenses-paid Las Vegas weekend from an attorney who had cases before the court.

Appointive systems are no cure-all. "There's a certain amount of obsequious politicking with either appointments or elections," says Justice Franklin Spears. Notes Lawyer McMains: "The problem with appointments is who gets to do it. If it's the Governor, you've just shifted where the politics are." In some states merit selection has scarcely contained the efforts spent to put judges on the bench and keep them there. "Judicial campaigns are getting noisier, nastier and costlier," notes Georgetown Law Professor Roy Schotland, an authority on campaign spending.

In Texas things may get still worse before they get better. This year Republicans are pushing to gain a solid foothold on the supreme court, and that means a dizzying round of spending. The newly appointed interim chief justice, Republican Thomas Phillips, says he would like to cap individual contributions to his campaign. But he still plans to raise $1.5 million. His Democratic opponent, sitting Justice Ted Robertson, intends to raise the same amount. "It's not a pleasant task to seek out contributions, but money is the name of the game. Do you know what 30 seconds in prime time costs these days?" Robertson asks. "$17,000." The pity is that knowing such numbers may count for as much as knowing the legal precedents.