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.