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.
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.
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.
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
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.
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.
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.
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.
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.
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.
Pulliam is a retired attorney from Austin