On Oct. 1, Texas Supreme Court Chief Justice Wallace Jefferson will step off the bench for the last time, leaving behind what has become one of the most efficient courts in decades and one that often speaks with one voice when resolving some of the state’s most important civil disputes.
Weeks before he left, Jefferson sat down in his chambers with Texas Lawyer senior reporter John Council to discuss why he’s leaving, what it was like watching significant tort-reform changes from a seat on the state’s highest civil court, whether Texas will ever change the way it selects judges, and what he considers a “stain” on the practice of law. The conversation has been edited for length and style.
Texas Lawyer: You’ve spent 12 years on the Texas Supreme Court, a decade as chief justice. Nobody thought you’d stay in this job forever. So why do you believe now is the best time for you to leave?
Chief Justice Wallace Jefferson: There are several reasons, but to begin with I wish I could remain. This is a job that I really love, and I think, as with any job, the more experience you have in it, the more effective you become. It’s been really gratifying to make progress with our Legislature, with our own court docket, with other administrative matters and with some influence on national judicial policy. But I think we’ve accomplished a lot in those 12 years in areas that I may not have foreseen when I first began. It seemed to me that this is pretty good point of departure, and, for a number of reasons, there are family considerations, and I want to stress anytime I talk to the media or anyone else about this that this is really not a complaint about judicial compensation. In fact, the Legislature in this past session gave a significant raise to judges across the state of Texas. The last time they did that was eight years before, and that’s just in the nature of dealing with the Legislature, which has competing demands on the state budget. But, like anyone else, you come to a point in your family’s life — you can make a decision that will make their lives easier, that will enable more options in term of colleges and that sort of thing. If there comes a point where you have that opportunity and you can make a choice, it’s understandable that one would make that choice. I was thinking, “Do I remain?” If I remain, I’d have to run in another election in 2014. The potential for me leaving would be relatively great, because by then I’ll have another son in college and the third closely on the way. So, it just appeared to me to be the right moment.
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TL: You’ve had a string of accomplishments on the court, including protecting legal aid funding for the poor, increasing transparency on the court and making sure the court issued opinions in an efficient manner. Which of those accomplishments are you most proud of?
Jefferson: The thing I think the court has done the best and I think has had the greatest impact is providing greater access to legal representation for the indigent. I think it is a stain on our profession and on the rule of law for there to be people who have legitimate legal concerns that cannot be met simply because they are unable to afford representation. Our nation is better than that, and our state is better than that. And I think the success we’ve had in having a good conversation with the Legislature about the desirability of providing basic legal services to as many in our population as we possibly can. And I give [Justice] Nathan Hecht great credit for his advocacy in that respect. He’s been just a tremendous warrior for those in our society who lack the resources to defend their rights in court. And it’s been phenomenal to see.
TL: Like two of your predecessor chief justices, you put a lot of personal and political strength behind trying to convince the Legislature to change the way we select judges. While you may have advanced the debate on that issue, we’re still electing judges in this state. Do you think we’ll ever move away from electing judges, and what will it take to do that?
Jefferson: I think it is a very difficult challenge to persuade members of the Legislature, members of both political parties and advocacy groups that this system is not the best for our state. I understand to some extent what their arguments are, and those are that judges are not special; they’re no more wise than others in political office. Why should they not be held accountable if a judge is failing to perform his or her duty? What if the judge just doesn’t have the intellectual capacity to do the job? Should there be some sort of accountability? So, people want accountability. The problem with electing judges in a state with 26 million people — if you’re looking at statewide judicial election or even in a county that has well in excess of 2 million people like Harris County and Dallas — . . . the problem is, when people go into the ballot box, they really have no idea who these judges are. The proportion of people voting straight-ticket ballots is increasing every election cycle. So, rather than choosing a judge based on the public’s attempt to hold them to account for their conduct in office, they are simply choosing a Republican or a Democrat whatever their experience or background. And I think that is an irrational way of choosing a person to preside over a case that might involve life and death and certainly involves huge public policy issues, like how you finance your schools or how water is allocated in our state. These are decisions that ought to be made by men and women who have demonstrated their acute legal ability, their untarnished ethics, their reputation for hard work. And none of those are determined simply by party affiliation. And, so, I believe we should go to a different system where, when you select a judge, the first thing on your mind is their qualifications. And, if they’re going to sit on a trial bench: Have they actually tried a case? Do they know the rules of procedure? If you’re going for an appellate bench: What’s your experience in legal writing? How many appellate briefs have you filed? How many cases have you argued? What do your peers think of you? What do the judges you’ve appeared before say about your hard work and keeping your bond? That sort of thing. So, I would prefer seeing judges elected through an appointment system, in which a commission evaluates the candidates’ experience and background and history of work and then makes recommendations tothe governor, who selects from that list. And then you can bring accountability in, after having that judge serve a term and be subject to an election in which the public gets to determine whether to retain that judge or not to retain that judge and have the public informed about that decision by an evaluation, a judicial evaluation commission. Maybe it’s the same commission that selected the judge but where the judge is based on things like how efficient the judge is in an office, what do the witnesses and jurors say about their judicial temperament, where they able to decide appeals? Based on objective measures, should they be retained or not retained? And I think that does give the public the ability to hold judges accountable but ensures that the judge who is on the bench is of impeccable character and intellect.
TL: We’ve seen scandal amongst judges, you’ve made an argument to the Legislature, and the political will is against you. What is it going to take? We’ve seen everything possible to tip the scales, and it hasn’t happened. Is something else going to have to happen for this the public’s mind to change about this?
Jefferson: The worst thing we can do is give up on the argument. We need to keep making the argument, because, in my estimation, it’s right. And legislatures change from session to session. There are people new to the Senate and the House who may understand the importance of this issue. We’ve attempted in the past, and maybe it’ll be time to do so in the future, to get a bipartisan group of citizens, whether they be lawyers or advocacy groups or business. We want both sides of the docket, plaintiff and defendant, prosecution and criminal-defense lawyers, leaders in public opinion and in media and elsewhere and make a concerted effort to show the wisdom of a change. But we also can’t take this lightly. This would be a constitutional change, and most states have not moved in the last decade from elections to this sort of merit-based system, and we’re not the only state that’s tried. It’s a big challenge that’s worth the fight.
TL: From the time you started practicing law until now, a lot has been made of the “vanishing jury trial” in Texas and the effect tort reform has had on the way we dispense justice in this state. What was it like watching that debate from a seat on our state’s highest ranking civil court?
Jefferson: The debate took place even before I came to the court. I remember practicing in the late 1980′s, and most of the new lawyers then and in my field or in my firm got their beginnings in worker’s compensation battles. They were deposing and conducting discovery and trying cases all related to the then-litigious worker’s compensation system. And that changed in the late 1980′s when the Legislature made that system much more administrative. I don’t know if you’d call that tort reform, but it certainly was public policy that removed many jury trials from the system. And beginning in the late 1990s and early 2000s there was a movement to sort of curb what some called excessive lawsuits. And that did have an impact, a pretty profound one on many areas of practice. From my perspective on the bench, the questions of this sort of policy are appropriately made in the Legislature. And the arguments for and against are arguments that need to be advanced in the Texas Capitol. The role of the judge is different, and it is to apply the law as written, assuming there’s no preserved argument about the constitutionality of that law that has merit. And so judges should generally be neutral in respect to whether the policy is good or bad; it’s what the Legislature has devised. But I would also say that if, in the coming years, that there is a movement in the other direction, judges on our court should do the same thing and interpret the statute strictly, and if it evidenced a new direction in so-called tort reform, then so be it.
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TL: . . . The Texas Supreme Court is often criticized for being too sympathetic to the defendants that it judges. Now that you’re leaving the court, what will you tell people who have reached that conclusion?
Jefferson: I would say they are free to reach whatever conclusion they want. We’re in the public eye, and this a job that is not without critics from the right and the left and from the plaintiff’s side and the defense bar, from advocacy organizations, from the newspapers. It’s high profile, and the court is issuing decisions that have a direct impact on many, many lives. I would go one step further and say that a lot of the criticism that I’ve seen is directed at who won and who lost. People want Smith to win, and instead Jones won, and so they’re mad at the court that Jones won. And that is almost the extent of the analysis. People should be more critical in their criticism of the court and especially lawyers. The question is not who won but was the statute followed appropriately by the court? Did the court engage in a natural progression of the common law? Does the Constitution require the result, whether or not you are happy with the outcome? And I think there’s less of that sort of analysis than I would like to see when people give their opinions on the Supreme Court of Texas.
TL: Your background as the court’s first African-American justice whose great, great, great-grandfather was once owned by a Texas district court judge is inspiring. It’s also wonderful biographical information for a political candidate. Do you ever think you’ll seek public office again?
Jefferson: Not in the near future and probably not in the distant future. It’s important for me to say that I admire people who do, greatly and much more than I did before I came to the bench. As a lawyer and citizen, it was easy to lambast people in public office. You’re really just joining the choir in that respect, and I would criticize some public members of being too political, et cetera. But I’ve actually seen a lot of these people at work, and the far greater percentage of public officials are doing their best to help their fellow man. I can’t say it more simply than that. You may disagree, as I do, with some of the decisions that they reach, but they are really giving back to their community. And they’re putting themselves out there for very intense, often unfair criticism, because they think they can help our state do a better job at making this a good place for business or a good place for individuals to succeed in life. And when you’re in that position, you’ve got very hard choices to make. Do you spend the money on schools, or on medicine, or on the roads, or on water, on transportation needs in general? Do you increase compensation for judges? All of these are very hard decisions, and so I admire that they’re public servants.
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TL: If I wanted to learn more about the judicial legacy of Wallace Jefferson, which of your opinions would you suggest I read?
Jefferson: I guess there are two that come to mind. I like the way you asked that question, because the question is not, “What are your favorite opinions?” but if you could say there’s something you could learn about jurisprudence from someone’s service. There’s a case I wrote a concurrence in called OJO, which you can look up for yourself. The substance of the case is not as important as how I articulated at least my position on legislative history. There’s a debate among great judges all over the country in federal and state court about whether it’s appropriate to discuss how a particular statute came into being. What were the forces at play in Congress or in the Legislature when the statute was adopted? What was the environment at that point? How does it relate to other statutes? It provides a context for evaluation of what that statute means. That’s one. There’s another case that I think was interesting to me because I couldn’t find any precedent for this in any other cases, and that’s a case in which I dissented. It’s called Southwestern Bell v. Mitchell. And I dissented in the case. It was case involving the interpretation of the Labor Code and what sort of fines or penalties or waivers might be visited on an insurance carrier for not contesting a claimant’s compensation dispute timely. I lost in how I interpreted that statute. And so I wrote a dissent that I believe had three other votes. That case was decided, and another case was pending around that same time. And then the Legislature met and overturned the court’s decision and adopted the argument I had made in my dissent. So then the question came: OK what about that pending case? Will it be judged by the new legislation that adopted my dissent or by the older case that was pending when it was filed in which my dissent did not prevail? And the question was: Which law applies? And the majority said that the new legislation applied, and they reversed the opinion in which I dissented. So it was, in a way, a victory that my decision was ultimately adopted. But I dissented from that decision, and I said, “This is not the proper way to interpret a statute. Because, even though I dissented, when that judgment issued, that was the law of the land. And it didn’t matter what a subsequent Legislature did to cases that were pending when that majority opinion issued.” So it was wrong to sort of go back and unsettle the expectations that all these parties had about a decision of the Supreme Court. It’s an odd example, and maybe it’s too complex for these purposes. . . .
TL: I’m interviewing you on Tuesday, Sept. 10. Today, the governor has announced that your replacement will be the court’s most senior justice, Justice Nathan Hecht. Tell me how you feel about leaving this court in Justice Hecht’s hands?
Jefferson: Well, I think it is an inspired choice by Gov. Perry. Nathan Hecht has served on this court since January 1989. He is the senior appellate justice in active service. He, as I mentioned earlier, has been instrumental in working with the Legislature to provide more funds for basic civil legal services. He’s been a champion for the poor and recognized as such both in Texas and in Washington D.C. He has a keen intellect, he’s one of the most brilliant people I know, and he has a work ethic that is second to none. I believe he will bring continuity and stability to this court. I said yesterday on the bench, when I decided not to participate in arguments, I said, “But don’t worry, I’m leaving the court in good hands” for those arguments. I feel even more so about leaving the court good hands today because Justice Hecht will be a phenomenal chief justice. He has just the right tone, he is a consummate leader and Texas will be in a very good place with him at the lead.