Molly Ivins

Justice Swerved

“I’ve named four Supreme Court judges in the state of Texas, and I would ask the people to check out their qualifications, their deliberations . . . I’ve had a record of appointing judges in the state of Texas. That’s what a governer gets to do. A governor gets to name Supreme Court judges.”

—George W. Bush, from the October 4 presidential debate

Ooops. Uh, actually, we rather notoriously elect judges in Texas, including those on the state Supreme Court. However, due to a series of early retirements, Bush has been called upon to name four justices, so one can see how he might be confused about it.

Since he brought it up, it’s worth taking a look at Bush’s picks for the state Supremes, since they do tell us rather a lot about his taste in judges. Fans of the arcane sport of electing judges in Texas know that the process offers an abundance of frisks and jollifications. Who can forget the time we accidentally elected the Wrong Don Yarbrough? (The Wrong Don, who later became a felon on the lam, claimed that he won because God told him to run; this caused political cartoonist Ben Sargent to draw God on a cloud, looking harassed, saying, “Yeah, but I thought he was the Other Don Yarbrough.”)

In the olden days, our Supreme Court was (surprise!) extremely conservative and pro-bidness. Then, in the 1980s, Texas trial lawyers started putting a lot of money into judicial races and got some actual liberals elected to the state Supremes. They usually voted to uphold decisions by juries that went against large corporations. Juries often rewarded victims of large corporations quite handsomely; having a corporation do something awful, like cut your arm off or leave a roach in your soda pop, was regarded as somewhat akin to winning the lottery.

Perhaps the most famous of these decisions was the 1985 case in which Texaco was hit with an $11.1 billion judgment for interfering with a Pennzoil business deal. Unfortunately, this kind of thing aggravated large corporations, which then started putting enormous sums into electing pro-bidness judges, legislators, governors and such – thus taking all the fun out of having a corporation ruin your life. The court went from upholding plaintiffs in more than 60 percent of the cases in the 1980s – which was then cited as shocking evidence of the court’s bias – to upholding defendants by 83 percent in 1995-96. Texas Medical Association lobbyist Kim Ross, in a moment of splendid understatement, told The New York Times: “The court was becoming increasingly viewed as conservative almost to a fault. There were complaints of unfairness.”

Bush’s appointees to the court – James A. Baker, Greg Abbott, Deborah Hankinson and Alberto Gonzalez – have something of a reputation for being more moderate than their elected Republican colleagues, many of whom are favorites of the right-to-life movement. The reputation may be a misimpression. It is based largely on the court’s decisions in parental notification cases. Three of Bush’s appointees were part of a 6-3 majority giving a teen-age girl a second hearing on ending her pregnancy. Under the state’s parental notification law, a girl can seek a “judicial bypass” of the law’s requirement that her parents be notified of an abortion. The girl must convince a judge that she is mature enough to make the decision herself or that notifying her parents would be harmful.

One elected Republican on the court, Nathan Hecht, accused the majority of “deep-seated ideology that minors should have the right to an abortion without notice to their parents, free of any significant restriction.” However, there are no signs that the Bush appointees favor abortion rights. The decisions can be read as classic strict constructionism, since the legislature, to put it mildly, did not write the law with any precision. It’s also pretty clear that this court thinks judicial bypass cases are a waste of its time.

From the evidence of his appointees, one can conclude that Bush has not made being militantly anti-abortion a litmus test for Texas judges, but he has made being pro-business a litmus test. Three of the court’s recent decisions limit class-action lawsuits so drastically that Baker, Bush’s first appointee, was moved to dissent. He said their decision “mocks the Constitutional prohibition of special laws and undermines our special law jurisprudence.” He also added, in what one paper called a “cryptic” reference, “In any event, we all know what is going on here.”

It’s not cryptic. Texas Supreme Court justices receive big campaign contributions from big corporations, and in return the corporations get favorable decisions. As the Star-Telegram reported recently, the Halliburton Co. under Dick Cheney was a big contributor and a big winner in the court.

Molly Ivins is a former Observer editor and a columnist for the Fort Worth Star-Telegram. Her book with Louis Dubose (Shrub: The Short But Happy Political Life of George W. Bush) is being re-issued in a new edition. You may write to her at [email protected]

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