Bench Memos

Elections

The Eyes of Texas Are on Senior-Eligible Judges

Texas State Capitol in Austin (CrackerClips/Getty Images)

Well, President Trump endorsed Ken Paxton for Senate in Texas. It sure seems as if Paxton’s rock-ribbed commitment to abolishing the filibuster so that Congress can pass a House messaging bill designed to favor the high-propensity, suburban GOP of 15 years ago might have done the trick.

Different people have different views on the Texas race, of course. Some are convinced that James Talarico is such a loon that it’ll be a cakewalk. Others are convinced that an indicted adulterer running as a member of the God squad can’t win. No one really knows, though, beyond premature polling, anecdata, and vibes.


What we do know is the fundamentals. Talarico is a deeply flawed candidate with plenty of oppo-research vulnerability who will have infinite Act Blue hard money and a hagiographic press. Paxton is a deeply flawed candidate with plenty of oppo-research vulnerability that’s already priced in; his is the kind of vulnerability that will repel high-information suburban former Republicans (you know, the sort of people who have passports).

No number of glossy, candidate-rate ads by Paxton, showing him reading the Bible in an F-150 on his way to adopt a George Strait dog will boost his numbers among the married women of Tarrant County. Neither will the praetorian press allow any earned media to drive a narrative against the Right Reverend Talarico. Paxton’s path to victory depends on independent expenditures, blanketing the airways of Texas with every weird leftist thing Talarico has said and done.

Independent expenditures, of course, cost more than candidate-rate ads, and Texas comprises 22 distinct media markets — including two of the most expensive anywhere (Dallas–Fort Worth and Houston). So saturation bombing against Talarico by the likes of the Senate Leadership Fund and One Nation will cost utterly obscene amounts of money. Ted Cruz nearly hit $100 million in his 2024 reelection campaign, and he was the candidate. By contrast, in 2024, SLF spent around $60 million against Sherrod Brown in Ohio (a state with around half as many media markets as Texas, the top of which barely cracks the top-20 nationwide), $50 million in Pennsylvania against Bob Casey, and $30 million in Michigan against Elissa Slotkin.




It is not hard to envision an independent expenditure in excess of $200 million in Texas to do what needs to be done to Talarico. That’s enough money to make the rubble bounce in Ohio, Michigan, Iowa, Alaska, Michigan, and New Hampshire — all of which seem to be necessary seats to defend or ideal pickup opportunities.

This means that Senate Majority Leader John Thune will have three options to choose from: (1) try to double SLF’s haul from donors to cover this new expenditure, (2) cut off other vulnerable states (like Ohio) or pickup opportunities (like Michigan), or (3) cut off Texas.


Again, this isn’t poll-reading or prognosticating; it’s fundamentals analysis. Paxton’s victory would require dump trucks full of money raised and spent by outside groups in negative advertising. That money will need to come from somewhere. Therefore, Paxton’s nomination will make one of two things more likely: Democrats may win Texas if the money doesn’t turn up, or Republicans may lose states like Alaska, Ohio, and Iowa if the money is diverted to Texas. Either way, the Democrats will be in an appreciably stronger position with Paxton as the Republican nominee than they would have been with John Cornyn.

Why does this matter? Because if you’re a senior-eligible conservative judge and you have any interest in being replaced by a conservative, you must understand that Republican control of the Senate next Congress is not assured. Indeed, the fundamentals are such that Republican control is getting less likely by the day. For a senior-eligible judge to assume Republican control of the Senate next Congress would be, simply, irresponsible.

Michael A. Fragoso is a lawyer in Washington, D.C. and a fellow at the Ethics and Public Policy Center. He previously served as chief counsel to Senator Mitch McConnell and chief counsel for judicial nominations and constitutional law on the Senate Judiciary Committee. He clerked for Judge Sykes from 2014 to 2015.
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