Keller tries to derail Keith Hampton's candidacy; Mark Bennett to challenge Hervey as Libertarian

It's a rare day when the Texas Court of Criminal Appeals makes the news for anything but the occasional overzealous death penalty ruling or suborning some cockamamie brand of junk science, but this week brings two tidbits of electoral political news that merit attention: Republican Sharon Keller levied a challenge with the Democratic Party to the candidacy of her presumed opponent Keith Hampton, aiming to keep his name off the November ballot. And Mark Bennett, the Houston criminal defense attorney who blogs at Defending People, signed up as a Libertarian candidate to run against Judge Barbara Hervey in the fall.

Let's take these two in order of importance: Since her fellow CCA judge Larry Meyers decided at the last minute not to challenge Sharon Keller in the GOP primary (after previously announcing he would do so), eliminating Hampton in the courtroom instead of the ballot box would relieve voters of any option whatsoever for replacing Keller for a fourth term as Presiding Judge. Given that, here's hoping Keith Hampton got his act together on his signatures before the filing deadline and his candidacy is approved. See Hampton's press release responding to Keller's gambit.

As for Mark Bennett (visit his campaign site), Grits must confess disappointment that he signed up to run as Libertarian when there's no Democrat running against Republican Barbara Hervey. Bennett understatedly declared that "the Libertarian candidate in a race for a seat on the Court of Criminal Appeals faces a steep uphill battle." In reality, as a practical matter, the Libertarian candidate has entered into a political suicide pact. Bennett himself demonstrates why in a  post laying out vote results from 2008, the last CCA race coinciding with a presidential election:

Place 3:

Republican Incumbent	3,940,954
Democratic Candidate	3,477,426
Libertarian Candidate	215,427

Place 4:

Republican Incumbent	4,035,683
Democratic Candidate	3,336,944
Libertarian Candidate	249,921

Place 9:

Republican Incumbent	4,709,086
Libertarian Candidate	1,041,499

Your mileage may vary, but these downballot races barely run campaigns and do not typically spend money on paid media. Very few voters can even name a member of the Court of Criminal Appeals, much less meaningfully evaluate their record. And the MSM are lucky to devote one story per election to the race at any given outlet, with political reporters generally understanding as little about the court as the general public. As a result, CCA vote totals derive almost purely from party identification.

Let me step back for a moment to make clear that I respect Mark Bennett tremendously, both as an attorney (by reputation) and as a writer, and that's speaking as someone who may have read every single word he's written, or close to it, virtually since the day he began Defending People. He's a great guy and I think he'd make a terrific judicial candidate. Now let me proceed to chastise him, though merely on grounds of political naivete and perhaps a wee bit of selfishness, not ill intent.

(Grits should add that, despite my various policy differences with Judges Hervey and Keller, neither woman has ever been anything but extraordinarily gracious and polite toward me. Judge Keller seems like an authentically sweet person on a personal level, though admittedly she's never wanted to chit chat much, while I genuinely enjoy Judge Hervey's company. The fact that I'd like to see the voting bloc responsible for decisions like this one and this one broken up on the court doesn't mean I hold any personal animus toward either of them.)

Bennett tells us he chose to run for the Court of Criminal Appeals because the slot against Barbara Hervey was the only one statewide where Libertarians hadn't lined up a candidate. Well, guess what? That means that was the single race where - before Bennett filed as Libertarian - a candidate who seriously wanted to unseat Hervey and begin voting and writing opinions in her stead could have filed as a Democrat and had the best chance in more than a decade of unseating an incumbent statewide Republican.

Libertarian votes are protest votes - the electoral version of "none of the above." If there were no Libertarian candidate, most of those votes would go to the non-incumbent, which in Texas means to the Democrat, or else those folks just wouldn't vote at all. I've always inferred from the large Libertarian vote in CCA races that there's a disproportionate amount of dissatisfaction with the Court of Criminal Appeals among voters under Sharon Keller's leadership, or else why would the Libertarian totals get so high when a Dem is absent? In other races where Rs run unopposed by a D, L totals are typically much lower.

So Bennett's candidacy in Grits' estimation represents not a cause for celebration but a missed opportunity to unseat a member of the court faction who, with Judge Keller, has systematically slanted the court's jurisprudence far to the pro-prosecution end of the spectrum. That said, Judge Hervey - both in several notable opinions and her work with the Criminal Justice Integrity Unit - has distinguished herself as more thoughtful and slightly less hard-line than Sharon Keller, but in the scheme of things the two women's records aren't all that different, particularly compared to where a Mark Bennett might come down on the issues.

Bennett nobly announces that "I don’t want a single vote from anyone who can’t explain to me what my job will be if I’m elected." Translation: He doesn't actually want to be elected. Why would he, since he grants elsewhere that "getting elected would entail a brutal pay cut"? Sure, as Bennett declared on Defending People, this is "an office in which [he] could do real and lasting good." But the harsh truth is if the goal was to get on the court and do good instead of just talk about it, he'd have run as a Democrat or in the GOP primary.

Running quixotic campaigns for office to "educate" the public about this or that subject or to "send a message" is about as ineffective a tactic imaginable, substituting a single candidate's personal ambition for the policy goals of whatever ideals one hopes to champion. The only reason to run for office is to try to win, because power comes with winning and elections are how we decide who gets to wield it. That's all it's about. If you want to "educate" people, write on your blog or even better, use the money you were going to spend on a campaign on paid advertising to promote your message. More people will receive it that way.

Grits has opined for years that the CCA races (and to a lesser extent, the Texas Supreme Court) are the Texas elections where Dems have far and away the best chance of unseating a statewide Republican. Bennett notes that "in the closest 2008 Court of Criminal Appeals Race there was more than a 200,000-voter difference (that is, the result would have been different only if more than 200,000 voters had [switched their votes]) between the winner and second place." That's not an insurmountable margin, particularly compared to other statewide races, if a serious candidate were to run an actual, well-resourced campaign.  If there were no Libertarian candidate and most of those L protest votes went to the D challenger, the race tightens up considerably. In an R v. L matchup, though, the risk of success is a null set. Bennett's lotto numbers have a better chance of coming up.

Keith Hampton, however, has a puncher's chance to defeat Sharon Keller if he can make it onto the ballot, particularly in a year where conservative voters could stay home if Mitt Romney is the GOP presidential nominee. That's where the real action lies, to the extent it's possible for any Dem to win a statewide race in Texas at this historical juncture. Bennett's candidacy will be fun for his readers - and I hope for him - but regrettably inconsequential.