Trial lawyers make a cynical play for the Texas Supreme Court, Place 9

Mark Pulliam Jan. 29, 2016, 9:12am


This is another post on the races currently underway for three seats on the Texas Supreme Court. I have previously written ... about the race between incumbent Justice Debra Lehrmann and challenger Justice Michael Massengale for Place 3, and the potentially confusing race between incumbent Justice Paul W. Green and challenger Rick Green for Place 5. In this post I discuss the race between incumbent Justice Eva Guzman and challenger Joe Pool Jr. for Place 9.

Why am I writing about this? First of all, I am a (retired) lawyer and legal blogger living in Texas, and the composition of the state supreme court — although sometimes overlooked — is very important to all Texans. Second, thanks to landmark tort-reform legislation passed in 2003, Texas’s legal system is widely regarded as the most business-friendly in the United States, a welcome respite from the rampant plaintiff-orientation so common elsewhere. Texas’s legal system, including its judiciary, is a national model.

Third, elections in Texas have national implications. Texas is the nation’s most populous and consequential Red state: All statewide elected officials (including both U.S. senators) are Republican; both chambers of the state legislature are controlled by lopsided GOP majorities; and, due to its 38 electoral votes (second greatest of any state, trailing only California), Texas is an influential player in presidential politics. Home of Bush 41 and Bush 43, Texas boasts recent (former governor Rick Perry) and current (Senator Ted Cruz) presidential candidates. Unlike Las Vegas, what happens in Texas doesn’t stay here. So all court-watchers and political observers ought to be interested in the Texas Supreme Court races.

To recap, all judges in Texas are subject to partisan elections, and because in recent decades all statewide elected officials have been Republican, the action is in the GOP primary (set for March 1, 2016), not the November general election. Incumbent justices on the Texas Supreme Court can and do lose the GOP nomination to primary challengers. It happened recently to Justice David Medina in 2012, in an upset financed in large part by Democrat trial lawyer mega-donor Lisa Blue Baron. In 2014, with funding by plaintiffs’ Vioxx lawsuit mogul Mark Lanier, the plaintiffs’ bar unsuccessfully attempted to repeat the feat by challenging three incumbents on the GOP primary ballot. The trial lawyers, desperate to regain a foothold on the Texas Supreme Court, are apparently at it again in 2016. Their target is Place 9.

The Republican incumbent, Justice Eva Guzman, was appointed to the supreme court by Governor Rick Perry in 2009 to fill the vacancy created by the retirement of Justice Scott Brister, having previously served on the 14th Court of Appeals (2001–2009) and the Harris County District Court (1999–2001), both in Houston. She was elected to a full six-year term in 2010, decisively defeating opponents in both the GOP primary and general elections. Guzman is the first Hispanic woman to serve on the court. 

She is a formidable legal scholar. For example, in Gunn v. Minton, 568 U.S. 310 (2013), the U.S. Supreme Court unanimously reversed a Texas Supreme Court decision, adopting the position she articulated in her dissenting opinion. Regarded as a conservative, she is married to Houston Police Sergeant Tony Guzman, and in this race has been endorsed by many GOP elected officials (including Governor Greg Abbott and Lt. Governor Dan Patrick) and numerous influential organizations (including Texans for Lawsuit Reform and Texans for Fiscal Responsibility).

Guzman has been honored for her judicial service by many groups, including the State Bar of Texas. She is a member of the American Law Institute and serves of the Board of Visitors of the Duke University School of Law. Her challenger, Joe Pool Jr. (also nominally a Republican), is an attorney who is the son of former Democratic state legislator and congressman Joe R. Pool of Dallas (where a lake is named after the elder Pool).

He has no prior judicial experience. In 2011, Pool was disciplined by the State Bar of Texas for actions that “unnecessarily increased the costs and burdens of litigation,” and was ordered to pay $2,250 in attorneys’ fees and expenses. In the Lanier-funded ruse (see above), Pool ran against Justice Jeff Brown in the 2014 Republican primary, receiving 28.1 percent of the vote, after failing to have Brown’s name removed from the ballot due to alleged technicalities. (In the related litigation, Pool was represented by a lawyer with deep ties to the Democratic party, reinforcing the perception that Pool was a “ringer” for trial-lawyer interests.) Pool previously ran for the GOP nomination for an open seat (Place 4) in 2012, finishing third in a three-way race (winning 28.8 percent of the vote), with fellow-challenger John Devine advancing to a runoff against top vote-getter incumbent David Media.

Medina, laden with personal baggage, ultimately lost the runoff, 47 percent to 53 percent. Why would a candidate who has lost twice, never polling above 30 percent, make a third run for the Texas Supreme Court? One explanation is that he is a gadfly who enjoys the attention that comes with being a candidate. A more cynical explanation is that Pool hopes that Republican primary voters will choose him because of his opponent’s Hispanic surname (Guzman).

A bit of history is useful. In addition to John Devine’s upset victory over David Medina in 2012 (aided in part by Pool’s dilution of the primary vote, forcing a runoff), Republican voters in Texas have sometimes shown a preference for “common” names over “exotic” names on the ballot. Some observers mistakenly consider this to be evidence of GOP voters’ bias against Hispanics. Consider the case of Xavier Rodriguez. The Harvard-educated Rodriguez, then a partner in the respected law firm Fulbright & Jaworski, was appointed to the Texas Supreme Court (Place 5) by Governor Rick Perry in 2001 to fill the seat vacated by Greg Abbott when he was elected Texas attorney general. 

The next GOP primary, in 2002, Rodriguez was defeated by a conservative lawyer with no prior judicial experience named Steven Wayne Smith, despite outspending his opponent $558,000 to $9,500. Smith, who ran unsuccessfully for the court in 1998, had gained some notoriety due to his representation of the plaintiffs in the Hopwood v. Texas case, challenging racial preferences in admission at the University of Texas. Nevertheless, defeating a heavily-favored and well-respected incumbent endorsed by every newspaper in the state, in the face of a 60 to 1 campaign spending advantage, raises some questions. Did voters reject Rodriguez because of his judicial philosophy (“moderate,” in his own words, the kiss of death in Texas), or due to his unusual name (perhaps especially “Xavier”)? Many observers thought it was the latter, and felt their suspicions were confirmed when Devine defeated the flawed Medina a decade later. As a postscript, Rodriguez landed on his feet, winning an appointment to the federal district bench in 2003 by President George W. Bush. 

He is widely considered to be a contender for appointment to the Fifth Circuit by a future Republican president. In contrast, Smith’s victory was relatively short-lived; he was challenged and beaten in the 2004 primary by Court of Appeals Justice Paul W. Green, who was strongly backed by Governor Perry (seemingly intent on a comeuppance). Smith ran again in 2006, challenging the recently-appointed incumbent Justice Don Willett, both running as conservatives. Smith lost by less than 5,000 votes. (Note that Smith polled well against both Rodriguez and the WASP-ish Willett.) This ambiguous history leads cynics to wonder if perennial candidate Pool is mistakenly hoping to repeat the Rodriguez and Medina “precedents” by challenging Guzman.

If so, Pool is badly miscalculating. All elections are sui generis, based on unique facts and circumstances peculiar to the particular candidates and their campaigns. Based on her extensive (and exemplary) judicial service, conservative credentials, and robust work ethic, Guzman has a much stronger record than either Rodriguez or Medina. Moreover, Guzman handily defeated her last primary challenger in 2010 (although her opponent then was also a Hispanic woman, Justice Rose Vela of the 13th Court of Appeals). In any event, the conjecture of GOP voter bias against Hispanic candidates in Texas is belied by the spectacular success of U.S. Senator Ted Cruz — considered a political rock star among Texas conservatives.

For these reasons, it is inconceivable that GOP primary voters will give the nod to a faux Republican, trial lawyer-funded, serial candidate (and loser) with a checkered disciplinary record and no prior judicial experience (Pool), over a popular, highly-respected, experienced, capable, and well-endorsed conservative incumbent, untainted by scandal or controversy, who boasts numerous honors and accolades (Guzman), based solely on her last name.

By reelecting Guzman, GOP primary voters will dispel the lingering myth — cynically exploited by the plaintiffs’ bar — that in Texas candidates’ names are more important than candidates’ records.  

Mark Pulliam is a retired attorney from Austin

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