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| Photo via US Marines' official Flickr acount |
Judge Keller, the self-styled, "pro-prosecution" judge, has so much baggage coming in it'd be hard to know where to attack first. The findings of facts against her by the Commission on Judicial Conduct were damning and provide ample fodder for campaign attacks. (Her punishment was overturned as illegal but the findings of fact on the merits remained untouched in a circus-like tragicomedy that embarrassed the court and the state.) Keller was also fined by the Ethics Commission $100,000 for failing to disclose a vast web of financial entanglements. (See the ruling [pdf].)
Even more than those dark moments, though, many of her opinions and dissents contain jaw-dropping pro-government assumptions that could be mined for anti-populist material that would make any good Tea-Party type cringe. Just as Governor Perry's greatest political achievement has been to maximize power over state agencies through appointments of political allies, creating a (relatively) strong executive where Texas historically had a weak one, Judge Keller's principal achievement as the CCA's Presiding Judge has been to oversee (and arguably principally author) an expansionist accumulation of government power by law enforcement and prosecutors over nearly two decades. A comprehensive vetting of her opinions by a campaign researcher would yield lots of attack fodder. But these campaigns must undertake that work, then use the information to construct and deliver political attacks: That's the piece that I'm not sure is going to happen, though there's still time.
I'd be happy to see either challenger unseat Judge Keller. To borrow a phrase from Judge Michael McSpadden, speaking recently of Harris County DA Pat Lykos, Keith Hampton and I "are not close, and in fact probably don't like each other," but he'd be a welcome breath of fresh air on the court if he pulled off the longshot upset. Judge Meyers probably faces shorter odds than Hampton at unseating Keller, but so far he hasn't run much of a campaign, that I've seen. He's been on the court forever and in many respects his record as judge isn't much better than Keller's. But he'd surely be a less ideological and polarizing a figure, and if he runs a smart, well-funded campaign he stands a puncher's chance to beat Keller in a primary.
That's just what it is, though: A puncher's chance. And as a political-consultant friend of mine likes to say, "you don't win a fistfight without throwing any punches." Judge Keller is surely the betting favorite to win reelection next year as I write this. If either of these men wants to beat her, they're going to need to attack, hard, and put significant resources behind those attacks. Otherwise the race will garner no attention nor interest amidst the 7-dwarves in the GOP presidential primary and a (theoretically) competitive US Senate race for Kay Bailey Hutchison's seat on the ballot in March. And in the November election, of course, the presidential race will drive turnout and (if history is any guide) drown out discussions of tertiary races like this one.
Judicial races are generally sleepy affairs, but if one or preferably both of these challengers don't bring out the attack dogs, Sharon Keller will skate under the radar to reelection and another six-year term, despite all the embarrassment and divisiveness she's brought to the court.
I don't think the vast majority of voting Texans are displeased with Keller's performance; or even some of her more controversial actions which have the defense bar, criminals and anti-death penalty crowd all stirred up. I also don't think it's correct to argue that Keller moved the court to the right or caused a dramatic expansion of government power. If anything, she pulled the court back to the middle from the extreme leftward drift that had occurred during the 80's and 90's. The CCA, with the likes of Judge Charlie Baird on the bench, had gotten pretty out of hand reversing jury verdicts and expanding the exclusionary rule. Cases were being overturned right and left based upon silly legal technicalities. The public was fed up. Granted, the conservatism of the current CCA hasn't been hurt by the expansion of the Republican Party in Texas. But the bottom line is that Keller has just been doing the job that the people elected her to do.
ReplyDeleteI don't think "the vast majority of voting Texans" even know who Sharon Keller is or could pick her out of a police lineup. Likely a a majority aren't even aware the CCA exists separate from the Supreme Court, anymore than most people can tell you what the Railroad Commission does. To cite these downballot races as some expression of public will is silly.
ReplyDeleteBTW, I didn't say Keller had moved the court to "the right," I said she'd expanded government power. Slightly different thing. If she's a conservative, it's a brand of Big Government Conservatism. To argue that two decades of pro-government opinions didn't expand government power is preposterous on its face and not worth arguing. Her record speaks for itself.
"Silly legal technicalities" aka constitutional rights, were good enough for Kay Bailey Hutchinson. And her expansion of the "harmless error" doctrine has prevented juries from doing their job every bit as much as overturning a jury verdict.
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ReplyDeleteGREAT POST! And you are correct, most people don't know who Sharon Keller is and have no idea the amount of impact her decisions have on government expansion.
Would like to hear Perry explain how the CCA has "contributed" to limiting government in Texas.
The exclusionary rule is a fairly simple concept. If the cops or a citizen breaks the law in an attempt to enforce the law then the evidence they collect cannot be used in Court. See 38.23 of the Code of Criminal Procedure. The citizen part ("other person" in the code) is what make Texas stand out as a State that make Texas unique as it says we don't want anyone breaking the law to enforce the law. So many Judges now hide behind this expanded notion of "harmless error" and ignore the protections of the exclusionary rule. While its true State Judges in Texas are elected, they all take the same oath to uphold the law regardless of public opinion. Keller has ignored the law so drastically that many will be shocked to think that they wouldn't want their little Johnny being treated like this. She told Roy Criner that rapist might wear condoms in the face of DNA evidence showing him innocent. Fortunately the very conservative Montgomery County officials recommended a pardon which Bush signed as Governor to release him before he was executed.
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