The Oddest Race in Texas

Can the tea party capture a seat on the Texas Supreme Court?


As Ted Cruz whips up unprecedented excitement for the July 31 run-off election, one side effect may be a Texas Supreme Court win for the tea party.

Two Houstonians are battling it out for Place 4, and, as with Cruz and David Dewhurst, the establishment candidate (incumbent Judge David Medina) is surprised to find himself under siege by an inexperienced upstart who simply out-wing-nuts him.

Texas Supreme Court justices serve staggered six-year terms and run for re-election in often pro forma partisan races. (All the current justices are Republicans.) This year, Medina faces an unusually strong challenge from former state judge and frequent race-loser John Devine, and it has gotten nasty.

Both parties have interesting pasts, but the dust-up du jour concerns remarks that Devine allegedly made to two longtime Houston lawyers about his reason for running against Medina. At a lunch meeting last summer, Devine allegedly told Scott Link and Frank Harmon that he was opposing Medina because “he had a Mexican name” and might be vulnerable in a GOP race. Link, who supports Medina, says he has told the story many times in the past year, but it went unnoticed until he repeated it in a video interview posted on on July 11. The Austin American Statesman picked up the story and confirmed it with Frank Harmon.

“This happened, and it’s awful,” Harmon said. “[Devine] said he wanted a job and people with Mexican names tend to lose in Republican primaries, and regrettably there is some evidence to support that.”

Harmon said Devine pointed to two Hispanic candidates defeated in the 2010 GOP primaries: Victor Carillo, a former Texas Railroad Commission chairman, and Leo Vasquez, a former Harris County tax assessor-collector.

He could also have mentioned Xavier Rodriguez, a Republican judge who was appointed in 2001 and lost the primary in 2002 to a man named Steven Wayne Smith despite having outspent Smith $558,000 to $9,500.

But that was 10 years ago. Now that the severely conservative set has fallen in love with Ted Cruz, does the conventional wisdom about Hispanic names in GOP primaries still apply? In June, a Texas Tribune piece argued that, maybe not, although it also featured a round-up that showed Republicans may not be great at protecting the Spanish-surnamed positions they’ve already got.

Devine didn’t respond to requests for comment, but his many online supporters (God bless whoever showed the tea party the Internet) are livid that Medina’s crowd is playing the race card.

Whether racism (or, more accurately, presumed racism) played a role in Devine’s choice to challenge Medina, this race is probably not the forum to test Texas Republican Anglophilia for two reasons. One, Medina sports an odd history that includes an indictment related to alleged arson. Two, Devine is truly radical in a highly tea-party-friendly way.

Medina, the incumbent and establishment favorite, has all the major endorsements—Rick Perry, Gregg Abbott, scads of lobbyists, state reps and judges—and that’s enough to make the farthest right suspicious.

Perry appointed Medina to Texas’ highest civil court in 2004, after Medina served as Perry’s personal counsel for a year. Medina won re-election handily in 2006. Then, in the summer of 2007, his 5,000-foot dream house in Spring burned down, taking two other homes with it. The fire was deemed arson when investigators found accelerant, plus Medina was behind on payments and homeowner’s dues, which he called an oversight. A grand jury investigated Medina and his wife, Francisca, and in 2008 indicted Francisca for arson and Medina for tampering with evidence. (Medina wasn’t home at the time of the fire.) The Harris County DA, Chuck Rosenthal, who later turned out to be mighty shady himself, dismissed the indictments the next day, enraging the grand jury. Two members of the grand jury even spoke out, calling the dismissals politically motivated. Francisca was re-indicted, but the charges were again dropped in 2009, at which point a different set of investigators deemed it an accidental electrical fire. So there’s that.

John Devine, meanwhile, is a tea party dreamboat. His biggest claim to fame is having defeated a lawsuit that tried to make him remove a painting of the Ten Commandments from his courtroom. But he’d really like to be known as the most stridently pro-life judge around.

According to his bio, Devine felt called to the bench in 1992 when he read about a Democratic judge in Houston who used a temporary restraining order against protesters to establish a protective area around an abortion clinic during the Republican National Convention. That year, he organized a pretty successful write-in campaign that failed to unseat his opponent but did help knock off four other Democratic judges. So he was instrumental in making Harris County a more conservative place from the start.

In 1994, Devine ran again, this time on the ballot. The Houston Press named his game immediately: “While Devine has moderated his campaign material in appealing to the blissfully unaware, only those wanting an ayatollah on the bench and an unprotected Family Planning Clinic should knowingly consider punching his number.” He won.

Calling John Devine pro-life is like calling Mitt Romney middle class. At a rally this June, Devine said he’d been arrested 37 times at abortion clinic protests. (This may be exaggeration. In July, he said he didn’t recall how many times. And in 2000, the Associated Press said he’d been arrested once, and that “his one-time activism should not disqualify him from ruling on abortion cases.” The Austin American Statesman found three Travis County court dates for Devine, all for misdemeanor criminal trespass, and two convictions.) But that ain’t the half of it.

Devine and his wife risked her life for their pro-life faith, and Devine has made it a significant part of his campaign. The first video on the front page of his website is called “Elizabeth’s story.” It documents the birth of his seventh child, Elizabeth, which his wife carried to term despite the fact that the fetus had a condition likely to kill her. She survived, and the baby died an hour later. The video opens, “What if your beliefs were so powerful, they allowed you to fearlessly risk your life for the life of your unborn child?” and concludes, “Though Elizabeth died only an hour after she was born, her life began at conception.”

Medina is also pro-life, and has the endorsement of Texas Alliance for Life (both candidates are endorsed by Texas Right to Life), but Devine’s history, and its presence in his campaign, makes one wonder if, given the chance, he might disallow abortion even when pregnancy threatens a woman’s life.

This would be an extreme stance, to be sure. But that’s not his only extreme viewpoint.

Devine has been something of a perennial candidate. During and after his eight years on the bench, he’s run for several offices—Congress twice, the state House once and a few others. In the process, he’s left some interesting campaign detritus. During his 2004 bid for Congress, he filled out a questionnaire by that’s still available online. Along with the usual questions about his position on the Second Amendment and gay marriage, it asked, “What role should the Federal judiciary play and how would you ensure judges stay within that role?”

Devine replied:

The only Constitutionally created Federal court in our nation is the U.S. Supreme Court. All other federal courts are the creation of Congress and can and should be controlled by Congress. When these courts begin to subvert justice and write laws, something that only the legislative branch can constitutionally do, Congress should take action to reign in such out of control activism. First, Congress can control judicial activism thru cutting off the funding of misbehaving courts and jurists. Secondly Congress has the power to impeach judges who effectively violate their oaths of office and refuse to do their jobs or who misuse the bench by pursuing personal agendas rather than promoting the rule of law and justice. Lastly Congress can and should limit the appellate jurisdiction that the Supreme Court has over subject matter issues. Congress can, by simple majority vote, state that the subject matter of a particular bill is not within the jurisdiction of the Supreme Court or other federal courts.

This is worrisome.

Devine’s colleagues agree. In the Houston Bar Association’s annual candidate qualification poll, 67 percent of respondents this year said Devine was “not qualified” for the job. Thirteen percent felt he was “well qualified.” (Medina got 43 percent “well,” 24 percent “not.”)

In the May 29 primary, Medina and Devine each picked up about a third of the vote—39 percent and 32 percent, respectively—with the rest going to Joe Pool Jr., a lawyer and oil-and-gas exec from Dripping Springs. Pool has endorsed Devine.

Race, fire, and babies aside, either Medina or Devine will win the GOP nomination on Tuesday—and with it a six-year term on Texas’s highest civil court. (No Democrat is running). Devine has indicated that he thinks tort reform has gone too far, and Medina wrote a persuasive dissent to the November decision gutting the Open Beaches Act, but otherwise, issues have played almost no role in this race. Both candidates have remained unreachable by multiple press outlets.

Alex Winslow of Texas Watch says while the details of this race are unusual, the effect isn’t. “Races for the Supreme Court are very important, and the decisions that the court makes have far-reaching impact,” Winslow said. “But most of the time, voters don’t have enough information to make informed decisions. I suspect it’s not any different this time.”