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Over $133 Million Insuramat la Force 6.1 g;teleateie4 Ale INSURANCE COMPANY P. 0. BOX 8098 Houston, Texas SAIROLD E. IRILEY vlso-Presidlame sad Dbeder et Agonies EXPERIENCED MATURE RESPONSIBLE CALVERT DEFENDED Waving published t h r e e articles critical of recent decisions of Associate Justice Robert Calvert of the Texas Supreme Court, the Observer consented to give space to “the other side,” and Austin attorney Hamilton Lowe has come forward with this reAUSTIN As a reader of The Texas Observer and an admirer of its fair and factual reporting of the news and its forthright editorial policy, I welcome this opportunity to express my views on a matter of public concern which has been the subject of discussion in several recent issues. I refer to the articles relative to the candidacy of Judge Robert W. Calvert for the Democratic nomination for Chief Justice of the Supreme Court of Texas. Although I readily confess that I cannot match, or even approach, the rapierlike wit or the classical literary style of the author of those articles, Hon. Franklin Jones, the Iconoclast of the Piney Woods, I can marshal some simple facts and from them draw a few logical conclusions. I agree with many of the things my good friend Jones has said about what the Law ought to be, but I emphatically disagree with his professed objective resulting therefrom, the defeat of Judge Calvert in the coming primary election. Analysis of the two candidates for , this most important office has led me to the conclusion that Judge Calvert’s particular attainments, as well as his continuous service on the Supreme Court for the past ten years, best fit him for the office he now seeks. Of course, these are merely the views of one lawyer who has practiced his profession for a number of years before both candidates. Were I to consider only the per…* sonalities involved, I would have considerable difficulty in making a choice. I knew Calvert’s opponent as a brilliant ‘student when we attended law classes together at the University of Texas and I have known him since as an excellent lawyer and an able judge. Likewise, I have known Calvert almost as long and have observed his phenomenal rise in the legal profession and his accoplshments in judicial, legislative, and executive capacities. I am convinced that both of these candidates are not only men of the highest integrity but that both of them are among the leaders in their chosen profession. As Jones has pointed out, we need have no fear that a judicial officer, such as these candidates are, “would be so reprehensible as to punish one who appears before him by reason of past opposition to him at the polls.” A judge worthy of the name can have no friends to favor nor enemies to punish, once he has accepted judicial office. Therefore, neither Jones nor the writer runs any personal risk in expressing his views with regard to this race, though I am sure that Jones would not permit any such apprehension to deter him, if it existed, and I hope that I would not, either. WE ARE NOT HERE consider” ing the office of Associate Justice. Calvert’s opponent did not choose to run for one of the Associate Judgeships, which he might have done. He chose, instead, to aspire to the Chief Justiceship, and his candidacy must be measured by his qualifications for that office alone. Throughout the articles written by Jones, I found no analysis of the qualifications of Calvert’s opponent for the office of Chief Justice. As a matter of fact, I did not find anything particularly sig THE TEXAS OBSERVER Page 5 April 22, 1960 nificant concerning his qualifications for any position on the Supreme Court, though much might have been said about that. What I did find was criticism directed to a few isolated opinions written for the Supreme Court by Calvert which did not seem to measure up to what Jones thinks a judge on the Supreme Court should write irrespective of what the other eight Justices think about the Law. This, I submit, is not valid argument for keeping Calvert an Associate Justice or for elevating his opponent over the heads of the other members of the Supreme Court into the Chief Justiceship. Jones has taken occasion to criticize Calvert for not resigning his office as Associate Justice before running for Chief Justice. His principal objection seems to be that the Governor will appoint Calvert’s successor if he is elected Chief Justice. He obviously overlooks the fact that the Governor would have appointed his successor had he resigned when he announced. Furthermore, Jones does not point out that the Governor will appoint the successor to Calvert’s opponent on the Third Court of Civil Appeals if his opponent is elected to the Supreme Court. Now, it is not made clear just how Jones knows who the Governor will appoint to either office, or, for that matter, who will be the governor to do the appointing. But assuming that he is prophetic and has gazed into his crystal ball and has seen not only the reelection of our present Governor, but also the frightful picture of his appointee as Calvert’s successor, I, for one, would much prefer that such appointee be placed on the Supreme Court than on our Third Court of Civil Appeals. On the Supreme Court there are. eight other Justices to hold him in check; whereas, on the Court of Civil Appeals there are only two others to offset him. His weight and influence on the Supreme Court will be but one third as potent as it will be on our Court of Civil Appeals. Of course, if Calvert’s opponent had resigned, as Jones says Calvert should have done, we might now be suffering from the effects of the Governor’s appointment. Personally, I am glad that neither one resigned, as they are both good judges where they are and I am in favor of keeping them on their Courts. I submit that Jones’s argument in this respect is somewhat inconsistent. MAINLY, HOWEVER, Jones seems to feel that Calvert has mellowed with the years and that his opinions do not have the ring of extreme liberalism that they formerly had. Maybe so. Maybe Judge Calvert has grown in stature with his service on the bench. A Supreme Court JustiCe should interpret the Law as it is, and not as any individual or group of individuals think it should be. I do not -propose to analyze the opinions of Calvert’s opponent to demonstrate that he too has grown in stature and maturity since his early years on the bench. I think he has, but that is beside the point. Any reputable practicing lawyer will verify this truism: A capable legal writer, like Franklin Jones, can select isolated opinions of Justices Holmes, Cardozo, or Brandeis, and make them sound like those of rank reactionaries, and he can by the same method make VanDevanter and McReynolds sound like fair haired liberals perish the thought. NOw, assuming that some of Calvert’s opinions do not conform to what Jones or the writer of this article thinks the Law should be, does that have much bearing upon his fitness for the office of Chief Justice as opposed to the office of Associate Justice on the Supreme Court? Jones has not demonstrated that Calvert’s opponent will write any better or more palatable opinions than has Calvert. After all, neither one will write the Court’s opinions unless at least a majority of the Justices concur. The particular cases which Jones selected to criticize were, with one or two exceptions, unanimous opinions of the Supreme Court. If Calvert was wrong, then most of the other judges were wrong, too, and that is not a very valid reason to disqualify all of the present justices of the Supreme Court for elevation to the Chief Justiceship. Opinions are written in rotation, and when it comes Calvert’s turn to write the Court’s opinion, he is writing not merely his personal views of the Law but those of the Court. Of course, he could dissent, and he has in numerous cases. But the point is that no Justice’s value to the Court can be estimated by pointing out a few scattered opinions with which some of us may not agree. We are disagreeing with the Court, not solely with the Justice. It is significant, I think, that Jones’s approach has been mainly negative. He is not so much for Calvert’s opponent as he is against Judge Calvert. Otherwise,, he would have analyzed fairly the opinions of the opponent and would have demonstrated, if he could, that they were superior to those of Calvert. As stated above, I agree with much that Jones has to say about the Law, as such. My views on some of those matters are reflected in the article in the December 4th issue of the Observer under the title “The Unidentified Defendant.” But I fail to see how Calvert can be blamed entirely for what the law now is. It got that way long before he ascended the bench, and he has done his duty as a judge and followed the precedents of his Court. A judge who is going to do otherwise will be a dangerous judge. But if we are talking about constructive efforts to change the Law through the proper procedures, that is something else. I cannot forget the yeoman service Calvert rendered the Bar of Texas back in 1937, ’38 and ’39. At that time, the State Bar was making a determined effort to secure some relief from the complicated trial and appellate procedure about which Jones inveighs. Calvert was then Speaker of the House of Representatives, and his devoted effort and his dedicated service to the Bar in helping to get enacted the Texas Rules of Civil Procedure through giving the Supreme Court rule making power was not surpassed by that of any other member of the Bar. No one member of the Bar did more to rid our courts of the monstrous special issue practice to which Jones refers than did Calvert during that crucial period. Nine-tenths of the evils of the kind Jones refers to in court procedure were wiped out by the new Rules, and those that remain have been minimized largely through Calvert’s activities in conjunction with the State Bar committee on the administration of justice and the rules committee of the Supreme Court. I believe that if Calvert becomes Chief Justice much more will be done. AS TO PUBLIC SERVICE, I cannot forget the year 1944, when the forces of reaction took over the control of the Democratic Party machinery in Texas and selected presidential electors pledged to vote for the Republican nominee regardless of how the people of Texas voted at the polls. That ruthless plot to disenfranchise the people of this State almost succeeded. However, thanks to the vigilance and devotion to duty of men like Robert W. Calvert and the late Judge James V. Allred; the plot Was thwarted and the disloyal electors thrown out at the September convention and replaced with electors pledged to vote the will of the majority of the people of Texas in the presidential election of that year. No two men in Texas public life deserved or were rewarded more credit for that victory than Judge Allred and Judge Calvert. Calvert has spent the past ten years on our Supreme Court in daily contact with his fellow Justices and with the retiring Chief Justice, Judge Hickman. It is axiomatic that a Chief ,Justice should have the wholehearted support of his Associate Justices when he enters into the performance of his duties peculiar to that office. Likewise, he must have executive ability over and beyond that possessed by a capable lawyer or judge. His duties involve much more than opinion writing. Some of that he must do, but the important thing is the administration of the entire court system of the state. Now, a new member on the Court will have difficulty in obtaining, in any short length of time, the complete trust and confidence, and resulting wholehearted cooperation, of’ the other members of the Court. Even the most able administrator and gifted dip lomatist would face a very formidable task in taking over the Chief Justiceship without some previous experience on the Court. It has been done in the past, yes. But at least one Chief Justice wrecked his health and died in office as a result of overwork at the job. By virtue of his long service on the Court, Calvert is not only thoroughly familiar with the operation and functions of the office of Chief Justice, but he has the advantage of close and intimate association with his fellow Justices. He has their confidence and respect to start with. In addition, his background of legislative service and executive experience as Chairman of the State Democratic executive committee in the parlous times already referred to qualify him admirably for the administrative post he seeks. It is for these reasons that I, as an independent lawyer and citizen who has always voted the Democratic ticket straight, support Judge Calvert for nomination to the office of Chief Justice of the Supreme Court of Texas. IN PASSING, I commend my I life-long friend, Franklin Jones, for his courageous criticism of some of our Supreme Court’s decisions. Constructive criticism is the most sacred facet of democracy. Though I disagree, I respect Jones’s right to express his honest convictions, just as I am sure he respects my right to express mine. In parting, I say to the Iconoclast of the Piney Woods, in language borrowed from the immortal Bard: “Lay on MacDuff, and cursed be he who first shall cry HOLD! ENOUGH!” L. HAMILTON LOWE $4 a Year Is the Price of Liberty Name Address City State 0 Bill the Subscriber $4 Enclosed THE TEXAS OBSERVER 504 W. 24th Austin