High-court watching: When the right-hand shoulder becomes the middle-of-the-road

The Texas Tribune offered up the first coverage I've seen outside of this blog regarding the looming departures of Judges Tom Price, Cathy Cochran and Paul Womack - one-third of the Texas Court of Criminal Appeals - which will leave three open seats to be filled in next year's elections. But despite my respect for reporter Brandi Grissom, the coverage struck me as odd.

For starters, the story announced the departures but, unlike Grits' earlier coverage, failed to identify any of the candidates running to fill their seats. The fact that these incumbents aren't running again has been known in legal and political circles for months. The real news is who might replace them.

Also, though no defense counsel were quoted in the story, Brandi did quote Tarrant County appellate prosecutor Chuck Mallin "who has practiced before the court since the 1970s." He said he viewed the court's "decisions over the last decade as 'middle of the road.' And that's where he'd like the court to remain." Come again? The only thing more preposterous than calling the Court of Criminal Appeals under Presiding Judge Sharon Keller "middle of the road" is for a media outlet to quote a prosecutor mouthing such an absurdity without providing a rebuttal.

As of this writing, there's not a single "middle of the road" vote on the entire court. Instead, the spectrum runs from conservative judges who rarely side with the defense to a more knee-jerk faction led by Judge Keller who reflexively rule for the government in virtually every circumstance.

The three departing judges fall into the former group, at least occasionally providing common-sense ballast to offset the Big-Government Conservatism of Keller and Co.. In any other high court in America they'd be considered part of the extreme right, but on the Texas Court of Criminal Appeals they're ostensible "moderates." By contrast, Keller's cohort often come off less like judges than prosecutors in robes.

What Mallin called the "middle of the road" in reality turns out to be the right-hand shoulder. And if one or two of these departing judges are replaced by Keller clones, there's a real risk the court will just veer off into a ditch.