Judicial Election Hijinks in Texas

by Mark Pulliam
For Place 5, will voters choose the flashy, untested show horse, or the reliable workhorse?

All judges in Texas are selected by the voters, in partisan elections. I have reported previously (here and here) about the contest for Place 3 on the Texas Supreme Court, between incumbent Justice Debra Lehrmann and challenger Justice Michael Massengale, currently serving on the First Court of Appeals in Houston. In Texas, Supreme Court justices are elected for six year terms, and each election three members of the nine-member court face the voters, in both a primary election and the general election in November. (For the past 20 years or so, all statewide elected officials in Texas, including justices on the Texas Supreme Court, have been Republican, so the real action is in the primary.) The 2016 primary in Texas will be held on March 1.

The filing deadline has now passed, and all three seats on the court that could be contested are contested. In addition to Place 3 (Lehrmann vs. Massengale), the incumbent in Place 9, Justice Eva Guzman, faces a challenge by perennial candidate Joe Pool, Jr., an attorney who ran unsuccessfully in 2012 and 2014, and the incumbent in Place 5, Justice Paul W. Green, faces a challenge by conservative activist Rick Green, a former state legislator who ran for the court unsuccessfully in 2010. This post will focus on the potentially confusing Green vs. Green race. First, a bit of background about judicial elections in Texas.

Winston Churchill famously described democracy as “the worst form of government, except for all the others,” and the same could be said for judicial elections. Electing judges is not ideal, but all other forms of judicial selection are even worse. Critics of judicial elections can point to examples of obvious electoral confusion, capricious voter decisions, and unqualified gadfly candidates challenging well-respected incumbent jurists. For example, in 1976 an obscure, scandal-ridden lawyer named Don Yarbrough was embarrassingly elected to the Texas Supreme Court due to the voters’ apparent confusion of him with former longtime U.S. senator Ralph Yarborough (D., Texas) (whose name was not even spelled the same!); Yarbrough was forced to resign in July 1977 and eventually fled the country to avoid prosecution.

In 2012, incumbent Justice David Medina was defeated in a Republican primary runoff by John Devine, a former Harris County district judge who had previously run for seven offices, ranging from U.S. Congress to state representative. It is possible that Texas voters — given a choice — were disinclined to vote for Medina due to his Hispanic surname; he was previously elected statewide in 2006 without primary opposition or a Democrat opponent in the general after being appointed by Governor Rick Perry in 2004. It is also possible that Devine’s high profile as a pro-life and religious-liberty advocate and support by the influential conservative activist Steven Hotze, a Houston physician, tipped the balance in Devine’s favor. Medina’s somewhat half-hearted reelection campaign was not aided by his financial difficulties and suspicions that he was responsible for a fire that burned down his house under mysterious circumstances. In any event, a serial office-seeker with no prior appellate-court experience managed to defeat a well-endorsed incumbent for the Republican nomination and went on to win the general election.

Perhaps buoyed by Devine’s fluke victory, in 2014 the plaintiffs’ trial bar — with which Hotze is associated — recruited and financed challengers to three incumbents (Chief Justice Nathan Hecht, Justice Jeff Brown, and Justice Phil Johnson) in the GOP primary. The plaintiffs’ bar presumably believed its “slate,” if nominated and elected, would be more sympathetic to challenges to Texas’s comprehensive tort-reform legislation, which is anathema to trial lawyers. Fortunately, their nefarious strategy was a failure; all of the incumbents were handily renominated and then reelected.

A few anecdotes do not discredit partisan judicial elections, any more than the occasional election of knaves and scoundrels to the legislature undermines democracy. Representatives Charlie Rangel (D., N.Y.) and Alcee Hastings (D., Fla.), and former D.C. mayor Marion Barry (to cite just a few examples), were elected and/or reelected despite serious scandals. Gadflies such as Harold Stassen made numerous futile runs for president. Former U.S. senator John Edwards, who lied about the paternity of his illegitimate daughter, was the Democratic nominee for vice president and a presidential candidate. The list goes on. State legislatures, local governments, and school boards contain many unqualified pols elected by artifice or happenstance. The Texas Supreme Court, in contrast, is a stable and well-respected court that has avoided the type of controversy that has plagued Pennsylvania, Florida, and Illinois. Despite occasional — and inevitable — election glitches, the court functions well.

But back to the 2016 race for the Texas Supreme Court. Rick Green, age 44, has a law degree but does not primarily practice law. He is a speaker (with David Barton’s WallBuilders), radio talk-show host, family-based reality TV performer (Red, White, Blue & Green – imagine Sarah Palin meets Duck Dynasty), former state legislator (he served two terms in the Texas House of Representatives, 1999–2003), and founder of the Patriot Academy, a religious-oriented youth organization. Rick Green’s website offers services ranging from constitution training (Constitution Alive!) to firearms instruction. However beloved Rick Green may be in the world of conservative political activists (akin to Alan Keyes, Chuck Norris, or Ted Nugent), and no matter how admirable his work, he is simply not qualified to serve on the Texas Supreme Court.

Rick Green has no prior judicial experience, and scant relevant legal experience. He styles himself a “constitutionalist,” but the bulk of the Texas Supreme Court’s docket concerns mundane — albeit important — matters of state law. His judicial temperament is questionable. According to press reports (e.g., here and here), his brief tenure in Texas’s part-time legislature (which meets for 140 days every other year) was marred by ethical controversies involving his promotion of the dietary supplements Metabolife and FocusFactor. After he left the legislature, he reportedly decked the opponent who defeated him, Patrick Rose. Rick Green ran for an open seat on the Texas Supreme Court in 2010 and narrowly lost to Debra Lehrmann in the Republican primary runoff. Afterwards, in Trump-like fashion, he sued his critics, including former Chief Justice Tom Phillips, contending that their campaign against him was libelous.

The Place 5 incumbent, Justice Paul W. Green, age 63, has served on the court for 11 years. He was elected in 2004 without an opponent in the general election, and was reelected in 2010 without a primary opponent. He is an experienced jurist, having served on the Fourth Court of Appeals in San Antonio for 10 years before moving up to the Supreme Court. Paul Green practiced law for 17 years before joining the bench. He is a well-respected judge with a centrist-conservative record who has garnered endorsements from Texans for Lawsuit Reform (the state’s leading tort-reform organization), the Texas Medical Association, and many other business groups. Paul Green is a former President of the San Antonio Bar Association and a member of the American Law Institute. His judicial service has been marked by integrity, decorum, and dignity. He exudes gravitas. By any estimation, he is highly qualified to serve another term on the Texas Supreme Court. Paul Green’s main weakness is that he has kept a low profile while serving on the court, rarely attending political events and maintaining no social media presence. Unlike his opponent, Paul Green is not a self-promoting media figure. While being inconspicuous would be considered “judicious” in many states, it can be a vulnerability in Texas, where judges stand for election.

When asked why he chose to run, and in particular why he chose to challenge the incumbent with the same last name (instead of seeking, for instance, a rematch against Lehrmann), Rick Green cites the “gay divorce” case, Texas v. Naylor, a 5-3 decision issued by the Texas Supreme Court on June 19, 2015, shortly before the U.S. Supreme Court’s Obergefell decision (which is very unpopular among the grass-roots activists who dominate the GOP primary voters in Texas). In that case, the court dismissed, on technical grounds, an appeal by the state of Texas of a judgment of divorce involving a lesbian couple that had married in Massachusetts. (Texas did not recognize gay marriage prior to Obergefell.) Justice Paul Green did not write the majority decision, although he joined it. (The decision was written by Justice Jeff Brown, a conservative stalwart.) The majority concluded that the state of Texas did not have standing to appeal because the attorney general had not intervened in the underlying litigation in a timely manner. The ruling was procedural, not substantive. The decision is hardly an endorsement of gay marriage, as Rick Green contends. In light of Obergefell, the issue is now out of the court’s control in any event.

In short, Rick Green is not a serious candidate, and he is not running for a serious reason. His election would likely diminish the credibility and stature of the Texas Supreme Court, undermine the stability of the court, and encourage future gambits like the trial lawyers’ failed 2014 primary scheme. Green versus Green will present Republican primary voters with potential confusion, and a choice: A glib, attention-seeking showman with no judicial experience versus a seasoned judge with a solid record. The March 1 primary will not only determine the Republican nominee for Place 5, it will serve as a referendum on the wisdom of judicial elections. Will Texas primary voters see through this unseemly stunt? Will Chuck Norris’s endorsement of Rick Green be decisive? Stay tuned.

— Mark Pulliam, a retired attorney, writes from Austin, Texas.

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