High Court Candidates Make Their Cases as Election Nears

With record voter turnout expected in a state that's not looking as red as it once did, lawyers who follow politics are asking: Can a Democratic candidate break through and win a seat on the all-Republican Texas Supreme Court?

It's hard to imagine, especially considering that in the past two general elections Democrats haven't bothered to put up a full slate of candidates to run for a high court that Republicans have completely dominated since 1998. But that was then, and this is now.

Three Republican incumbents on the Supreme Court will face off against three Democrats and three Libertarians in this year's Nov. 4 general election.

While three political experts disagree about whether the Republicans' grip on the court will loosen, they do agree that the margin of victory likely will be smaller than ever.

"I think they're going to be extremely tight," says James Aldrete, an Austin Democratic political consultant, of the Supreme Court races, which he believes are within the Democratic challengers' reach. The candidates "all have their appeal, but it's down ballot and not a lot of people have a lot of knowledge about the candidates. There's going to be a lot of trends and things we don't expect about the judicial races."

James Riddlesperger, a political science professor at Texas Christian University, acknowledges that while Democrats have made gains in Texas' large urban counties, he doesn't think it's going to be their year to win statewide judicial seats. Such races largely will be decided by which presidential candidate brings more voters to the polls -- U.S. Sen. Barack Obama, D-Ill., or U.S. Sen. John McCain, R-Ariz.

While Obama has attracted new voters in Texas urban areas like never before, Riddlesperger doesn't think that's going to be enough to lead the Democratic judicial candidates for the high court to victory.

"When you look at the aggregate across the state, it's still a fairly secure double-digit lead for McCain over Sen. Obama. And you would expect that trend to hold down ballot as well," Riddlesperger says. But Democrats will give the Republicans a run for their money, he adds.

"I think they'll do better than candidates have done in recent years," Riddlesperger says. "I don't think there's any question about that."

Even one Supreme Court incumbent recognizes that this election is different than others.

"It is a more interesting year than it's been in a long time," says Justice Dale Wainwright, a Republican seeking a second term on the court. "I'd rather it be boring."

There are plenty of high court issues for voters to chew on: the years it takes the court to decide some cases; the perception that the justices favor business defendants; and the influence, if any, campaign donations have on the court.

But how much of that debate is reaching the voters is, well, debatable. Republican incumbents already have beaten their challengers in the campaign fundraising war by more than a 2-to-1 margin, with much of that money coming from large Texas law firms, according to the justices' campaign finance reports. But the incumbents say that cash doesn't go far in getting their message out.

There are about 20 major media markets in Texas, and none of the high court candidates have enough money to hit all of them with campaign ads. The incumbents are buying television and radio ads, while the challengers are buying cable TV ads. But all of the Texas Supreme Court candidates are crisscrossing the state to meet with whatever bar and political groups will have them to discuss the issues.

Texas Supreme Court

Place 1

The marquee judicial challenge on the ballot pits Republican Chief Justice Wallace Jefferson against Democrat Jim Jordan, currently judge of the 160th District Court in Dallas County, and Libertarian Tom Oxford, managing attorney of Beaumont's Waldman Smallwood.

Jefferson, who was appointed to the court in 2001, won re-election in 2002 and subsequently was appointed chief justice in 2004, says he's proud of his stewardship of the court and he has helped the court eliminate a growing backlog of complicated pending cases -- some of which have taken as long as three years to decide.

"The fact is we have turned the corner on productivity," Jefferson says. "We have produced more opinions for the first time since 1996. We had a record term."

Wallace Jefferson (R)
Law School: University of Texas School of Law, 1988
Campaign Funds Maintained as of Oct. 6: $871,748

Jefferson says he has a good relationship with his jurist colleagues and lawyers around the state, as well as with the Texas Legislature. He also was elected chief of the National Conference of Chief Justices for 2010.

Jordan, who served a year on a state district bench in 1986 and was elected to his current bench in 2006, says he's challenging Jefferson for a couple of reasons: He wants to reform the system in Texas in which judges are elected and can receive campaign contributions from lawyers and litigants that come before them, and he's troubled by the high percentage of opinions released by the court that favor corporate defendants.

Jordan and the two other Democratic candidates running for high court seats point to a law review article released last year by University of Texas School of Law professor David Anderson that found that in the 2004-2005 term the high court ruled for defendants more than 80 percent of the time.

Jim Jordan (D)
Law School: Texas Tech University School of Law, 1977
Campaign Funds Maintained as of Oct. 6: $91,535

"The fact that we have these judges running in partisan elections and their contributions come from the people they rule for is creating distrust in the system," Jordan says. "The underlying problem is the 80 percent figure is so high, it's attention-grabbing. It calls into question whether they are following the law."

Jefferson says he has asked that the Legislature change the judicial election system in Texas to an appointed system with retention elections, just as former Texas Supreme Court Chief Justices Tom Phillips and John Hill did.

Jefferson says fundraising is a "necessary evil" of running for judge in Texas. "Unless you only want the wealthy to serve on the benches, you have to raise money."

Jefferson adds that he has earned a reputation for being fair in how he approaches cases and follows the law.

"I have not heard that I am unbalanced. And I've been gratified as I've crossed the state and have heard that I have approached cases in a balanced way" from lawyers and judges, he says. "I don't know what more you could ask for."

Oxford, who practices personal-injury law, says he wants to protect jury verdicts.

Tom Oxford (L)
Law School: University of Houston School of Law, 1982
Campaign Funds Maintained as of July 15: $0

"I think that the jury system has been under attack in Texas and the courts for the past 10 years," Oxford says. "And I'm concerned about that attack and the court placing its own judgment ahead of the juries."

Place 7

The race for Place 7 on the court features Republican Wainwright against Democratic challenger Sam Houston, a partner in Houston's Cruse, Scott, Henderson & Allen, and Libertarian David G. Smith of Henderson, a public school teacher with a J.D. who is listed as nonpracticing on the State Bar of Texas Web site.

Dale Wainwright (R)
Law School: University of Chicago Law School, 1988
Campaign Funds Maintained as of Oct. 6: $246,881

Wainwright says voters should keep him on the bench, because he has more judicial experience -- first as a Harris County trial court judge and later on the high court. He also says he approaches cases in an even-handed way.

"Mr. Houston is saying defendants win too much in the Supreme Court and businesses win too much. He's indicated that he wants to make sure that plaintiffs win more cases," says Wainwright, who has been on the high court for five years and previously served on a state district court for four years. "That sounds like an agenda more that judging each case based on the facts that come up."

Sam Houston (D)
Law School: Baylor University School of Law, 1987
Campaign Funds Maintained as of Oct. 6: $111,448

Houston says he wants to bring a trial lawyer's perspective to the court -- "I've represented defendants mainly," he notes.

And, like Oxford, he says his main objective is protecting the right to a trial by jury -- a right he believes the current court has diminished in its opinions.

"It's a right we need to not take lightly," Houston says. "And it's a trend that this court is taking away that right."

"The only way we can change the Supreme Court is to put different people on there," Houston says. "I do believe in a partisan system you need different people of different parties on the court. You shouldn't rule because of your supporters, but people's backgrounds make a difference on the court."

Another twist to the race is Houston's famous name, which also was the name of the first president of the Texas Republic -- a hero of the Texas Revolution in the state's fight for independence from Mexico. There's no biological connection to the historical figure, Houston says on his campaign Web site, but the site does say he embodies the same independent ideals as the Sam Houston of the 1800s.

While the famous name could give Houston a boost at the polls, Wainwright points out: "Sam Houston, the president of the Republic, died in 1863. Period."

David G. Smith (L)
Law School: Cornell University Law School, 1982
Campaign Funds Maintained as of Oct. 6: $0

Smith did not return a telephone call seeking comment before presstime on Oct. 23.

Place 8

The race for Place 8 on the court pits incumbent Republican Justice Phil Johnson against Democratic challenger Linda Yañez, a justice on Corpus Christi's 13th Court of Appeals, and Libertarian Drew Shirley, a Round Rock attorney.

Johnson, who has been on the high court for three years, says experience matters and he has plenty of it. He was a Lubbock trial lawyer for more than 20 years and later served as chief justice of Amarillo's 7th Court of Appeals.

Phil Johnson (R)
Law School: Texas Tech University School of Law, 1975
Campaign Funds Maintained as of Oct. 6: $692,545

"I spent over 23 years trying cases," Johnson says. "We're not here to decide facts. We're here to review matters of law."

Yañez, who has been on the 13th Court since 1993, says she'll bring a different perspective to the high court, which is seen by many as "results-oriented." Like Jordan, she cites the court's tendency to rule for defendants as a reason the Supreme Court needs new blood.

Linda Yañez (D)
Law School: Texas Southern University School of Law, 1976
Campaign Funds Maintained as of Oct. 6: $124,183

"We're saying there should be a balance," Yañez says. "When you start there, it's something that people can understand, there is a lack of balance on that court. They need to be challenged."

Johnson says he has heard the assertions that the court is results-oriented and he strongly disagrees with that assessment.

"My position is whether a decision is business-oriented or consumer-oriented depends on who's counting," Johnson says.

For example, sometimes plaintiffs verdicts are taken away, because the high court finds that there was an error in the charge presented to the jury, he says. Criticism that the court bends the law to arrive at those decisions are not valid, because those rulings rarely involve points of law, he says.

Drew Shirley (L)
Law School: University of Texas School of Law, 1996
Campaign Funds Maintained as of July 15: $0

Shirley did not return a telephone call seeking comment.

Texas Court of Criminal Appeals

Candidates for the Texas Court of Criminal Appeals typically run for election in obscurity. But the controversy that has enveloped the CCA for more than a year has made this election cycle atypical for one of the court's three judges seeking re-election Nov. 4.

Place 3

Place 3 Judge Tom Price, a moderate Republican who has served on the CCA since 1997, says he has had a difficult time with daily newspapers' editorial boards this year. Price's Democratic challenger, Susan Strawn, has picked up endorsements from The Dallas Morning-News, Houston Chronicle and most other major newspapers.

Tom Price (R)
Law School: baylor University School of Law, 1970
Campaign Funds Maintained as of Oct. 6: $3,168

"When I ran two years ago, they all endorsed me," says Price, who made an unsuccessful bid to unseat Presiding Judge Sharon Keller in the 2006 Republican primary.

Strawn, a former federal prosecutor, says the all-Republican CCA needs some changes. "It needs a change in its jurisprudence, and it needs a change in its leadership," she says.

Susan Strawn (D)
Law School: University of Texas School of Law, 1988
Campaign Funds Maintained as of Oct. 6: $12,596

The Michael Richard case helped her decide to run for a seat on the state's highest criminal court. "The court had a bad reputation before, but at that point, it was over the top," Strawn says.

The state executed Richard on Sept. 25, 2007, after his attorneys failed to file his motion for a stay of execution and writ of prohibition at the CCA before the clerk's office at the court closed. Richard's attorneys say that, despite their requests for extra time to file the documents, the clerk's office closed at 5 p.m. that day. They had sought to raise questions about the constitutionality of executions by lethal injection, an issue the U.S. Supreme Court had agreed to consider when it granted writs of certiorari in Baze v. Rees on the same day that Richard was scheduled for execution. Keller told the Austin-American Statesman at the time that Richard's attorneys had asked that the clerk's office remain open. "I asked why, and no reason was given," she said. [See "Out of Time," Texas Lawyer, Nov. 19, 2007, page 1.]

In Baze, two death row inmates had challenged the procedure used by Kentucky and 34 other states, alleging that if improperly administered, lethal injection can cause excruciating pain in violation of the Eighth Amendment's ban on cruel and unusual punishment. But in a 7-2 decision on April 16, the nation's highest court upheld Kentucky's protocol for lethal injection. [See "U.S. Supreme Court Upholds Kentucky's Lethal Injections," Texas Lawyer, April 21, 2008, page 8.]

Price says what happened in Richard's case has negatively impacted the CCA's reputation generally and in the legal community. But he adds, "I think the majority of the court is very concerned about our image. I think we strive to do our very best."

As examples, Price cites the CCA's 5-4 decisions in 2006's Springsteen v. State and 2007's Scott v. State that overturned the capital murder convictions of two men in Austin's highly publicized yogurt shop murders. The CCA ruled in both cases that the trial court erroneously admitted statements that Robert Springsteen IV and Michael Scott made to law enforcement officials regarding the murders, because each man declined to testify at the other man's trial. According to the CCA's ruling, the admission of the statements violated the two men's constitutional right to confront witnesses against them. Price says those rulings show the CCA follows the law.

However, it's the Richard case that is attracting attention. Strawn says the CCA had provided no system for effectively handling situations like the one that arose in Richard's case. "I believe I am more open to doing things differently than the people on the court," she says.

Houston criminal-defense solo and political commentator Brian Wice says, "If any court needs some fresh blood, it's certainly the Court of Criminal Appeals." But Wice says he does not think a Democrat will win a seat on the CCA this year, because the candidates at the top of the Democratic ticket are not as likely to attract voters to the polls statewide.

"I see more Republican voters going to the polls and being agog about the people at the top of their ballot," Wice says.

Republican presidential candidate John McCain is expected to win in Texas, which went for Republican President George W. Bush, former governor of Texas, in the past two presidential elections.

Anthony Champagne, a University of Texas at Dallas political science professor who follows judicial politics, also says Richard's case will not lead to Democratic victories at the CCA.

"It really is not going to have an impact on elections this time, because Texas is still going to vote Republican, scandal or not," Champagne says. "It's still a low-visibility court. The Democratic Party doesn't have the strength to mount a challenge statewide, at least not this year."

Strawn is the only candidate for the CCA who has raised any significant amount of money to mount a campaign. According to Strawn's Oct. 6 campaign finance report to the Texas Ethics Commission, she raised $10,050 between July 1 and Sept. 25, with much of that money contributed by attorneys with whom she worked while in public service.

Matthew Eilers (L)
Law School: University of Texas School of Law, 1989
Does Not Accept Campaign Contributions

From 1990 to 2004, Strawn was a prosecutor with the U.S. Department of Justice where she specialized in consumer fraud and white-collar crime cases. In 2004, Strawn joined the U.S. Department of Treasury in Senegal and worked to enforce anti-money laundering, anti-corruption and counterterrorist financing laws throughout West Africa. She returned to Texas in November 2006 and currently is an adjunct professor at the University of Houston Law Center, where she teaches anti-corruption law.

Price, who began his judicial career in 1974 and who has served on the Dallas County Criminal Court No. 5 and on the 282nd District Court, listed only $450 in contributions in his Oct. 6 campaign finance report.

Libertarian Matthew Eilers, also a candidate for Place 3, lists no contributions in his July report to the ethics commission. Eilers, an in-house attorney for software company ProDoc Inc. in Universal City, says as a Libertarian, he does not accept campaign contributions.

"I am running to provide an alternative to the Democrats and Republicans," Eilers says.

Place 4

CCA Judge Paul Womack also has drawn Democratic and Libertarian challengers in the Place 4 race. Fort Worth criminal-defense solo J.R. Molina filed for the seat as a Democrat, and Round Rock criminal-defense solo Dave Howard filed as a Libertarian.

Paul Womack (R)
Law School: University of Texas School of Law, 1975
Campaign Funds Maintained as of Oct. 6: $200

A CCA judge since 1997, Womack had to pay $20,500 in fines levied against him by the ethics commission in 2002 for his late filing of seven campaign finance reports. Womack's tardiness in filing the reports also led the State Commission on Judicial Conduct to issue a public warning to him in 2003. Womack said at the time that he would not seek re-election in 2008. [See "Public Warning," Texas Lawyer, Sept. 1, 2003, page 3.]

Womack says in an interview that friends and colleagues encouraged him to run again. If people remember his 2002 filing problems, Womack says, they also should remember that "what I failed to do was report I had no contributions."

But Womack says he is up to date on filing his campaign finance reports this year. "I'm steadily reporting what little financial activity I have."

J.R. Molina (D)
Law School: University of Texas School of Law, 1971
Campaign Funds Maintained as of Oct. 6: $0

Molina, who is making his fourth run for a seat on the CCA, hopes an expected surge in Democratic voters at the polls for the Nov. 4 election will result in higher voter turnout in the black and Hispanic communities, where he believes he will do well. Unless he wins this year, however, this will be his last race. "If I win, fine; if I don't, this is it," Molina says.

Dave Howard (L)
Law School: St. Mary's Unviersity School of Law, 1993
Does Not Accept Campaign Contributions

Howard says he is running to give the Libertarian Party a voice. "In the unlikely event that I win, I hope to bring to the court a strict interpretation of the [U.S. and Texas] constitutions," he says.

Place 9

In Place 9, CCA Judge Cathy Cochran drew a challenge only from Libertarian William B. Strange III, a Dallas solo, who did not return two telephone calls seeking comment.

Cathy Cochran (R)
Law School: University of Houston Law Center, 1984
Does Not Accept Campaign Contributions

Hector Nieto, spokesman for the Texas Democratic Party, says a Democrat had intended to run against Cochran. "In the end, the person who thought about running was not able to run after all, and there wasn't enough time to field another candidate," Nieto says.

Neither Cochran nor Strange has reported raising any money for their campaigns.

Cochran says she expects the controversy over the Richard case will have some impact. "A lot of people will be voting against the court," she says.

William B . Strange III (L)
Law School: George Washington University Law School, 1979
Campaign Funds Maintained as of July 15, $0

But Cochran says she doubts the sentiment against the court as a result of the Richard case will have a decisive effect on the elections. "I tend to think it will remain an all-Republican court," she says.