Supreme Court is Elected, but Bears Perry's Stamp

Texas Supreme Court justices listen to the State of the Judiciary speech on February 23, 2011.
Texas Supreme Court justices listen to the State of the Judiciary speech on February 23, 2011.

In Texas, virtually all judges are elected. But since he took office in 2000, Gov. Rick Perry has usually picked the winners on the state’s highest civil court, the Texas Supreme Court.

An example: In November, Debra Lehrmann, an incumbent, handily beat her opponent to win a six-year term on the Supreme Court. It was her first general election, but she had already served five months on the court. Perry appointed her in June 2010, when her predecessor, Harriet O’Neill, stepped down before her term was over. 

To date, only one of Perry’s 10 Supreme Court appointees has ever lost an election. In 2002, Xavier Rodriguez was defeated in his first Republican primary. Observers at the time attributed the loss to his Hispanic last name. 

Governor-appointed justices have a stranglehold on the court for a few reasons — not all of them political. First, Perry has had the opportunity to appoint so many justices in part because of a financial disincentive for judges to remain on the bench once they are eligible to retire with full state benefits and a pension. Salaries in the private sector can be very alluring.

"The salary economics are pretty stark,” Supreme Court Judge Don Willett said in an email, adding, “It’s unfortunate when elected officials, judges included, exit before serving their full terms, but the math is unrelenting.”

Second, entering an election as an incumbent, however newly minted, has advantages. Donors and lobbying groups are reluctant to go against a sitting justice, or one who has the governor’s stamp of approval.

Whatever the cause, the result is a predominantly Perry-appointed Supreme Court that Alex Winslow, the executive director of the liberal consumer advocacy group Texas Watch, said upholds the governor’s “staunchly pro-defendant and anti-consumer” ideals. (The state’s highest court in criminal matters is the Court of Criminal Appeals.) Winslow’s organization analyzed the Supreme Court’s decisions during the 2008-09 term and found it sided with consumers in 27 percent of cases involving an individual against a corporation or government agency — and it reversed jury verdicts in 72 percent of cases.

But Todd Olsen, a Republican consultant who runs judicial campaigns and is a former vice president of Karl Rove & Company, argues that studies trying to prove the justices vote as a “Perry block” are problematic and do not account for all variables.

“I don’t think there’s anything clear there,” he said. “It’s really hard to do a study like that. There are judges who have all had lots of experience. That's the one thing that is in common among all of them."

Willett took over his predecessor’s six-year term with 15 months remaining when the governor appointed him in 2005. He said the state’s elected judiciary “has actually been a quasi-appointed judiciary” but that it has been that way “for generations.”

He said the governor has chosen judges who reflect his judicial philosophy, which Willett described as “unabashedly conservative.” And he said that Perry understands the importance of judicial appointments. That is something he said Perry would carry into the White House if he were elected president.

“If you’re president, it’s often your court appointments that seal your legacy with a capital L,” he said. “I’m confident Gov. Perry gets that, consummately. He doesn’t do squishy. His judicial picks, from the Supreme Court on down, will not be philosophical ciphers, but impeccably credentialed conservative stalwarts who act judicially by adjudicating, not politically by legislating.”

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