November 8, 2005

Tom DeLay and the Texas Courts.

In the field of Federal Courts law -- where I've labored for twenty years -- there is a well-aired debate about the parity of state and federal law. Opinions about the difficult doctrine in this area often have to do with beliefs about whether there is something inferior about state courts. Liberals -- and others -- have long fretted about the problems of being relegated to state courts. (See Burt Neuborne's classic article "The Myth of Parity" and the many, many articles that cite it.)

In this light, consider the look at the Texas state courts Tom DeLay's case provides. The NYT reports:
One of only seven states to elect all of its judges on partisan tickets, Texas, some critics say, all but invented the million-dollar judgeship.

With prosecution and defense objecting to a string of judges, the DeLay case has produced a conundrum: can a partisan Republican defendant appear to get a fair trial from a partisan Democratic judge, as revealed by the political contributions the judge made? Traditionally, the focus has been on the money the judges received.

"Judges in Texas swing the gavel with one hand and take money with the other," said Craig McDonald, director of Texans for Public Justice, a nonpartisan group that tracks the influence of money and corporate power in the state.

Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove.

Thomas R. Phillips, chief justice of the Texas Supreme Court from 1988 to 2004 and an opponent of partisan judicial elections, linked the trend to events long before Mr. Rove's efforts. "We were probably the first state in the nation to make judicial races as expensive as hotly contested regular political campaigns," he said.

In the prosecution of Mr. DeLay, the powerful Texas Republican and former House majority leader who faces charges involving illegal corporate campaign donations, the question of judicial impartiality was answered in the negative. The judge, Bob Perkins, who was shown to have made about 30 contributions totaling $5,255 to Democratic candidates and causes since 2001, was replaced at a hearing in Austin last Tuesday, setting off a round of judicial hot potato.

The next to be handed the case, the district administrative judge, B. B. Schraub, a Republican, recused himself after a Democratic challenge. The case then went to the chief justice of the Texas Supreme Court, Wallace B. Jefferson, a Republican and perhaps the most partisan of all, who quickly handed off the case to an appointee, where it remains apparently for good.

The last man standing was Pat Priest, a 65-year-old semiretired judge from San Antonio. He is a Democrat, and he acknowledged making campaign contributions himself, but only of $150 each to three candidates for the Texas House last year.

"That's it, I'm a tightwad," Judge Priest said in an interview....

The complaints against the Texas judicial system have a long history. In 1987, "60 Minutes," in a program called "Justice for Sale," showed Texas Supreme Court justices taking hundreds of thousands of dollars in campaign donations from lawyers appearing before them. Eleven years later, "60 Minutes" found that little had changed.

In 1998, Texas for Public Justice issued its own report, finding that the seven Texas Supreme Court justices elected since 1994 had raised $9.2 million, of which 40 percent came from interests with cases before the court. A survey taken for the court itself, the group said, found that nearly half of the judges themselves thought that campaign contributions significantly affected their decisions.
If you don't like DeLay and are tempted to laugh to see someone you loathe getting a harsh deal, remember that concerns about the inferiority of state courts usually arise in a context where the person getting the brunt of the problem is even more unsavory than a member of Congress.


Jacques Cuze said...

f you don't like DeLay and are tempted to laugh to see someone you loathe getting a harsh deal, remember that concerns about the inferiority of state courts usually arise

That's not why we're laughing. On that point, we all agree.

This is why we're laughing!

Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove.


Tom DeLay's lawyers are now arguing that for their client to get a fair trial there needs to be a change of venue, particularly somewhere other than "liberal" Travis County, home of the state capital and in the jurisdiction of DA Ronnie Earle.

This from the AP ...

Defense attorneys argue that DeLay has been vilified in liberal Travis County, which was split into three different congressional districts as a result of a redistricting map DeLay engineered.

It's karma! It's My Name is Earle! It's proof that truth is stranger than fiction! It's proof of Intelligent Design!

For Tom delay, his karma ran over his dogma!


Nick said...

"Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove."

Only the New York Times could examine suspect campaign contriutions surrounding Democratic judges... and still find a way to blame it all on Karl Rove.

me said...

A judge can influence the outcome to a large extent, but it still has to go before a jury, and errors of law can be corrected on appeal (with maybe a mix of judges).

The corrupt system in Texas is what it is, so DeLay is apt to get no better or worse treatment than the status quo.

Matt said...

Though I'm well aware it's a non-justicable political question, I've been of the belief for a while that purely elected judges (as opposed to "retention election" judges), particularly when on a pure partisan ticket, may arguably violate the "Republican form of government" guarantee in the Constitution.

sonicfrog said...

And don't forget all the hubbub about the large # of death row cases that have gone through the state courts. Any way to connect one sorta-psudo-scandal with the other.

brylin said...
This comment has been removed by a blog administrator.
brylin said...

The Washington Post beats the New York Times to the punch (as usual these days) with its editorial on Saturday: "JUDGES AND POLITICS aren't a good mix; partisan election of judges is a bad system."

Read the whole thing at

Goesh said...

Let's go with the tightwad and see if Tom walks the gallows or not. It reaches a point where things just have to move on in the best way they can. If Judge Priest only gave $150.00 to three local politicians, I can live with that. It sounds like he has alot of years on the bench and can give a person a fair shake and at least read black letter Law. I've got a crisp $20 says Tom is guilty as sin even though I hate to see him swing for it.

Performing Bear said...

A joke told by state judges:

A psychiatrist dies and goes to Heaven. At the pearly gates, St. Peter says to her: "Dr., I'm glad you're here. It's God; he thinks he's a federal judge."

vbspurs said...

It's karma!

Karma is indeed, a very tricky thing.

Just thinking of what a person might get back for nonsensically trolling on lawyer blogs makes my nips hard.


vbspurs said...

can a partisan Republican defendant appear to get a fair trial from a partisan Democratic judge, as revealed by the political contributions the judge made?

IIRC, from my maths classes, they cancel each other out.

P.S.: Actually, my real reply is that the judge had contributed to the viciously partisan, Not only are these people on a crusade to destroy Republicans (any, all), but not content with having produced a schnooze-a-thon documentary on Fox News, they also had the temerity to hand out water ((wearing their Vote 4 Kerry tees) to people standing in the queue at our polling station last November, of which I was the Clerk. When I told them, if they didn't cease and desist immediately, they looked daggers at me.

Fear fear, when the minders are every bit as corrupt as the minded.


JimNtexas said...

First I confess my bias: I live on the northern edge of Austin in heavily Republican Williamson county. We are the political opposite of Travis County, a Sparta to their Athens.

It is clear to me that Earle's charges are without merit. After two years of investigation, on the last day of a grand jury's term, Ronnie obtained an indictment for violating a law that was not on the books at the time the alleged violation was committed. Realizing his error he approached a second grand jury the next day and tried for another indictment, but that jury refused to indict and returned a no-bill. Earle then hastily approached a new grand jury on its first day of existence and obtained his second indictment 2 days before the statue of limitations ran out for the alleged money laundering. Earle's case is clearly very weak at best.

You may recall that a few years ago Earle was essentially laughed out of court on the first and only day of the trial of Senator Hutchison on similar trumped up political charges. If I recall correctly the judge directed the jury to deliver a non-guilty verdict before lunch.

Travis county is a hotbed of liberal Democrat politics, a bright blue dot on an otherwise red state. Delay has been demonized by the local press and politicians for years. Earle has publicly promised Austin Democrats that he will deliver to them the head of Tom Delay. Delay could not get a fair trial in Austin.

I think the best thing would be to move the case to the Waco area. That area elects both Republicans and conservative Democrats. The area is lot less politically polarized than the Austin area. My expectation is that the trial will be in San Antonio just because that's where the judge lives.

Oh, one more point. It's not true in practice that we elect Judges in Texas, at least not Republican county and district judges. The invariable practice among Republicans is that the outgoing judge resigns and our governor appoints his successor. The successor will then run unopposed in the next election. After winning one election he or she is set for life, I can't recall us ever voting out a sitting judge.

Pastor_Jeff said...


Are you wagering $20 on conviction or guilt? If the latter, how do you determine? And if the former, is that simple state court conviction (excluding any appeals)?

I don't doubt, to paraphrase the greatest band from Texas, that he's as pure as the driven slush. What powerful politician isn't?

But as the theme from Beretta reminds us, "Don't do the crime if you can't do the time."

Pastor_Jeff said...


Is this the new minimalist masthead?

Poor Icepick was outlasted by John Paul I...

Icepick said...

Poor Icepick was outlasted by John Paul I...

I'm not dead yet!

And anyway, I took Reynolds and Goldberg down with me. An asymetric application of force done to perfection.

Goesh said...

Pastor, nobody will take my bet on poor Tom. $20 says the gavel raps him guilty.

Undercover Christian said...

Oh, okay, I'll bite. I'll take that $20 bet. My $20 says dismissal or not guilty verdict.

Pastor_Jeff said...

I took Reynolds and Goldberg down with me.

LOL!! The grammar of Reynolds' "She's smarter than me" has always annoyed me, but the last time I made a comment about it I got some page-length response. So all I'll say is "Thanks" for throwing yourself on that grenade.

I'm not dead yet!
He's not dead?
Well, he will be soon. He's very ill.
I'm getting better!
No you're not. You'll be stone dead in a minute.


Simple conviction, eh? I might just have to take you up on that. Wait - weren't you betting on JRB to replace O'Connor? Maybe you think you're due for a win?

Richard Fagin said...

Ronnie Earle is serving Tom De Lay a big helping of payback for the Congressman's role in redistricting Texas by bringing criminal charges without foundation in law or fact, and Mr. Earle is getting a free pass from the press for it.

The fact that Democrats had been gving Republicans the territorial shaft since Reconstruction doesn't seem to matter; turn about is NOT fair play when you incur the wrath of the mainstream media (a.k.a the Democratic Party free publicity machine). It did seem strange that Texas' Congressional delegation was formerly 17 Dems. to 15 Reps. while EVERY statewide elective office was held by a Rep. De Lay was absolutely pilloried in the press for his role in getting the redistricting accomplished. The Texas Congressional delegation much more closely follows voting patterns in the state than prior to redistricting.

JimNTexas, I can't speak for Williamson Co., but Harris Co. (Rome to your Sparta and Athens) voted out every single sitting Democrat district court judge in 1994. They haven't elected another one since.

R C Dean said...

I think Dallas County is more the Rome, here. At least the Rome of Nero and Caligula.

Troy said...

Having lived in Texas for 33 years... It's hard for people to imagine TX as liberal. Austin is definitely not Athens -- no democrats there. It's oligarchy baby -- Sparta! And Houston is NOT Rome becuase Rome had at least some zoning and city planning! Houston is a mess.

Austin is Madison, San Francisco, Sedona (AZ), Boulder, CO; Santa Fe, NM -- it is Hippy Hollow and Brian Leiter (too smart to not be a pompous ass) and Ronnie Earle and Ann Richards. It is Yin to Williamson Co.'s yang. Austin is drink the Kool-Aid I love Michael Moore liberal.

Are the court's suspect? I only got hosed (and I mean hosed) by judges taking trial lawyer money, but I mostly got a fair shake in Texas courthouses around north Texas.

Bruce Hayden said...

When I lived in Austin, we called it the PRA (People's Republic of Austin). Yes, it was liberal, just like Boulder, Berkely, Madison, etc.

Not sure whether it is going to stay that way though. It has become a high tech mecca, and many of the engineers who have moved in tend to be more libertarian than really liberal.

That said, much of that growth is on the north end, up towards Round Rock (think Dell), but that town, at least, is in Williamson, and not Travis, county.

I, alike a lot of people love Austin. Maybe not to live there any more. But definately to visit. What Austin has that those other hippie meccas don't is music. A lot of very good music. I am not a music person, but it does give the city a flair that it wouldn't otherwise have. I definately don't see it in Boulder, and haven't in Berkely when I have been there.

But I have a lot of memories of my brother, his wife, and my eco-attorney girlfriend of the time telling one Shrub joke after another, with the expectation that we would all think them hilarious. (this was while he was Gov. there). And most there did think them so. It is really the only place I have ever lived where everyone just assumed that you were liberal. After all, everyone was there. You hear about these liberal echo chambers, and it is surely one of them.