Smith Eyes a Return

Texas Supreme Court Justice Don Willett (center with glasses) at the State of the Judiciary speech in the House chamber on February 23, 2011.
Texas Supreme Court Justice Don Willett (center with glasses) at the State of the Judiciary speech in the House chamber on February 23, 2011.

Austin lawyer and anti-affirmative-action advocate Steven Wayne Smith is planning a return to the Texas Supreme Court.

Smith, who did not respond to requests for comment, will challenge Justice Don Willett in the 2012 Republican primary, according to a campaign filing with the Texas Ethics Commission.

It will be his fifth run for a spot on the high court, where he served from 2002 until 2004, but he is perhaps better known for successfully litigating an anti-affirmative-action case against the University of Texas School of Law for its race-based admissions policy on behalf of four white students. The U.S. Supreme Court overturned the 1996 decision from the U.S. 5th Circuit in 2003.

Smith first ran for the court in 1998, when he took on GOP incumbent Deborah Hankinson. In 2002 he defeated newly appointed justice Xavier Rodriguez in the Republican primary in an upset victory, where he spent only $9,500 to his opponent’s $550,000. Many observers at the time attributed Rodriguez’s loss to the perils of having a Hispanic last name in a Republican primary.

During the 2002 race, Smith filed a lawsuit against a provision in Texas law that that barred judicial candidates from stating opinions on any issues that would come before their courts. A federal court ruled in his favor, saying the rule violated the First Amendment.

Smith lost the seat in 2004 to current justice Paul Green, after every living former state Supreme Court justice came out to oppose his candidacy. Gov. Rick Perry also took the unusual step of endorsing against a Republican incumbent in that race, giving his nod to Green instead. During the campaign, Smith attributed the governor’s endorsement to “sour grapes” because he had defeated Rodriguez, his appointee.

Smith has also challenged Willett before, in the 2006 primary, shortly after Perry appointed him to fill an open seat.

In an email, Willett said he was confident that primary voters would “once again put their trust” in him given his “stout record of principled judicial conservatism.”

“It’s always unfortunate when a perennial candidate thumbs his nose at voters who have repeatedly said they’re not interested,” he wrote. “Such defiance sends a very insulting message: ‘Texas GOP voters, you just don't get it.’”