Sunday, February 07, 2016

An appeal for the conservative judicial activist pro-Big Government vote in the GOP primary

Grits despises Texas Court of Criminal Appeals elections. Nobody knows who the candidates are. And the campaigns don't raise enough money to educate any more voters than the candidates can reach by driving to a handful of poorly attended forums, or through the lightest possible smattering of earned media. The press barely covers the races, with the biggest outlets at most devoting one news article to all three races before the GOP primary (which is the whole enchilada in 2016 Texas).

The media or advocacy groups can vet candidates if they want but it seems to hardly matter. The results will be determined via the vicissitudes of decision making by an electorate with virtually no information about the court or the candidates and thus no basis whatsoever for choosing among them. I've never seen it polled, but in my experience most laypeople aren't even aware that Texas has separate high civil and criminal courts. Many voters quite literally aren't aware the Court of Criminal Appeals exists.

Thus, I won't be surprised if Steve Smith, with zero criminal law experience and a through-the-looking-glass judicial philosophy, were to defeat Sid Harle, who IMO is easily the most qualified candidate in all three races. Know-nothing demagoguery is all the political rage this season. Still, it's somewhat embarrassing that such an outcome is even possible.

The Texas Tribune reported that Smith "has focused on his opposition to what he calls “judicial lawmaking." Smith said he entered the race largely because he thinks Harle is too moderate."
“I got in at the last minute, right before the filing deadline, when it was clear Harle would not have competition,” Smith said. “The balance between moderate Republicans and conservative Republicans has shifted, and it’s important that a proven conservative take this spot.”

Smith cites Texas v. Villlarreal, a case in which the Court of Criminal Appeals ruled 5-4 that blood drawn from drivers without their consent and without a warrant is not admissible evidence in a DWI case, as an example of a case that he says could’ve easily been decided the other way with a fifth conservative voice.

“Those important cases are being decided 5-4, and I think it’s important to educate the voters that, contrary to public perception, the CCA is not far-right at the moment,” Smith said. “That's cause for concern.”

Harle has said it is not appropriate for judges to address how they would rule in specific cases in advance of hearing them in court.

“You can talk about your judicial philosophy, but you can’t really broadcast what you’re going to do to that degree, or you’d be subject to recusal,” Harle said.
Three things stand out here: First, Judge Harle is right. Every specific case about which Smith has opined on the campaign trail he'll find himself unable to influence once he's on the bench because the opposing side will be able to easily show he can't be a fair ... hmmmm, what's the word? ... oh yeah, a JUDGE!

Second, it's the height of Orwellian demagoguery for Smith to declare on one hand that he opposes
“judicial lawmaking" then announce in the next breath that he intends to vote with the faction of the court which is engaged in overt, unapologetic judicial lawmaking, openly asserting their policy views over the Legislature. That's a logical disconnect akin to declaring, "I oppose abortion so I want to work for Planned Parenthood." A judge running for the CCA in this cycle can be for or against "judicial lawmaking." But if you're against it, you cannot simultaneously declare you'll vote with Government-Always-Wins faction on the court, which is precisely what he's saying.

Finally, Grits would reject Smith's framing of the current factions on the court. He portrays the four votes which reflexively side with the government as "far right," but usually conservatives view judicial decisions which empower Big Government without respect for individual liberties as a bug, not a feature. So, just as Smith critiques judicial activism while declaring he'd vote with the judicial activists, he promises to vote as a conservative on the court while pledging that he will empower government over the individual in all disputes.

In many ways, on many levels, this primary election cycle has been framed as a debate over "what is conservative?" Though most voters couldn't name a CCA judge or pick one of these candidates out of a police lineup, that's at root the question underlying this race, too.


Carl said...

Well, that's pretty much what happens in the judicial elections on the local level. Uninformed voters, way too many races to research. My sense is that most voters just vote straight ticket out of ignorance. The results of such elections, at least recently in Bexar County, are completely arbitrary and capricious, leading to "joke candidates" throwing their hats in the ring and occasionally succeeding.

Anonymous said...

the only thing worse than electing them would be letting our politicians appoint them.

Anonymous said...

Well said, Grits & Carl.

Voting-Just-to-be-Voting should be classified as: Civil Disobedience / Voter Fraud, for those attempting to Vote without a certificate of completion showing attendance of the mandatory online Voter Educational Training Course, (a real work-in-progress). In lieu of a jail / prison sentence, punishment comes with: complimentary, yet, full synthetic 'Tar' & organic free range 'Feathers' prior to being Banished (tied to a rail and ran out of town). Not Really, they should simply be ordered to display a Yard-Sign & Bumper Sticker and be exempt from Taking-the-Plea - "I Voted-Just-to-be-Voting & the Judicial Lawmakers Won" *See my list of excuses below.

Failing-to-Vote, should come with one penalty (just one). Mandatory display of a Yard-Sign & Bumper Sticker and be exempt from Taking-the-Plea - "I Failed to Vote & The Judicial Lawmakers Won" *(See my list of excuses below). I'll let you know if the Commercial pitch is a hit, here in this GFB comment section. Signs & Stickers are being created as we speak, place your gift orders now before it becomes a law. Not Really, no one is going make any commercials calling out the problem(s) with our electoral process and you can make your own gag-gift displays for free.

Wanna have some fun. Ask 10 (just 10) voters upon exiting at the right distance from the polling location, a Walmart parking lot will do , why they voted for their candidate. I promise you'll still be able to hear those darn crickets for days afterwards. The glassy eyed look you'll get is like looking into the eyes of a dead animal or fish. But, at least they got off their buts and voted, right? Drop the mic and walk away from those saying they failed to.

The only thing left to say is Congratulations! in advance to Judge Smith. It (voting for the unqualified, inexperienced) seems to be a trend or a fad in Texas and beyond with devastating results, not noticed by the masses, until it directly affects / effects them.

*I wonder if he'd allowed himself to be interviewed by Grits before the election?

Anonymous said...

I actually hope Judge Smith wins because the absurdity of such a scenario will force debate on whether its time to re-evaluate partisan judicial elections. I think if he wins, even judicial election die-hards will be forced to reconsider. I mean whats next? What if some Texas rapper with only a high school education ran for a CCA slot and won just because of name ID? It could happen.
My preference has always been a merit selection system that gives the appointees long tenures(10 years or more)so that they are not constantly worrying about re-election. Such long tenures also produce a voluminous record upon which retention decisions can be made(performance grading). If a truly bi-partisan method of selecting judges is instituted, I would even go as far as supporting lifetime tenure like the Supremes. All said, partisan judicial elections are an affront to judicial independence

Steve said...

I think everyone is being way too optimistic that the election of Mr. Smith would create a call to look at the process by which we select judges for our highest courts in Texas. I seem to remember insurance lawyer Stephen Mansfield getting elected to the CCA in 1994. Here's what the Houston Press wrote of him: "The Houston lawyer now says he never had any expectation of winning and launched his statewide campaign simply to garner name recognition that would help him attract future legal clients." "Mansfield has almost no experience in the practice of criminal law. But he does have some unusual life experiences -- especially for a Republican -- including a youthful bust for dope possession, a fine that he paid for practicing law in Florida without a license and, more recently, a severe beating he suffered at the hands of an irate ex-girlfriend he had met through the personals." [] He was later reprimanded by the State Bar for trying to scalp some free tickets (a perk of his office) to a UT-A&M football game. In spite of all this, nothing has changed since 1994.

Anonymous said...

Steve @3:30 that Houston Press article was a classic. That was so funny I almost fell off my chair laughing. This Mansfield fellow is a character indeed. It's strange that in all this debate about judicial elections, I have never seen his name brought up as a poster child for the reformists. Had to discover this on a Grits post. Wow, very interesting!!

G. Dubya Duck said...

TRG @12:12, perhaps we should include literacy tests, and poll taxes in order to make sure that the undesirable, ignorant folks cannot corrupt our purity!? I think not...the last time we tried that it was overruled by SCOTUS. While an informed electorate is desirable, it can never be required. Thanks Obama!

Anon @4:15, you ever hear of the Missouri Plan? Let's create a Texas Plan that improves on the MO Plan (this also addresses your concerns TRG). We take the offices that are nearly impossible to be an informed voter on (e.g. judicial office) unless you're an attorney with business in the respective court or user of the court, and utilize a non-partisan commission. The commission reviews candidates for a judicial vacancy. The commission then sends a list of qualified candidates to the Governor, who has sixty days to select a candidate from the list. Then, at the next general election the judge is put on the General Election Ballot in a retention election. To retain or not to retain, that is the question. If a majority votes against retention, the judge is removed from office, and the process starts anew. If the majority votes in favor of retention, the judge serves until the term expires and is subject to another retention election.

Reality check: The nonpartisan model isn't desirable in a one-party super-duper majority government...just look at the calls for a nonpartisan Congressional and Legislative redistricting commission. So, maybe it starts as partisan appointees, then transforms (eventually) into nonpartisanship. I'm sure the Govna couldn't find worse candidates than some we've seen.

Yours Truly,