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On the campaign trail, Texas Gov. George W. Bush has vowed that if elected president he would name judges who are “strict constructionists” — not “liberal, activist judges” who legislate from the bench. The proof, the candidate has said, lies squarely in his record as governor. “I’ve named four Supreme Court judges in the state of Texas,” he said earlier this month at the first of three debates with Vice President Al Gore. “They’re good, solid men and women who have made good, sound judgments on behalf of the people of Texas.” But how reliable is the Texas record in predicting how a President Bush would shape the federal bench, including the U.S. Supreme Court? A look at the background and the record of the four Bush high court justices, including a review of dozens of court opinions, largely supports Bush’s assertions about his record on judicial nominations. Bush has named 134 judges to state courts at all levels, but his state Supreme Court picks are probably the best indication of his judicial philosophy. The four appointees are what lawyers call “judges’ judges.” They tend to defer to the legislature rather than create new rights on their own. They often favor business interests but are hardly sure votes for large corporations. And they are willing to dissent. “Bush was looking for people who are judicial conservatives in the traditional sense, people who do not want to use the courts to legislate, and he found them,” says Douglas Alexander, a Texas appellate specialist who is a political independent. Alexander adds that the Bush justices can be surprisingly unpredictable. “They’re a good bunch,” says Alexander, a partner at Austin’s Scott, Douglass & McConnico. “They are all independent thinkers. They are a highly diverse group. They don’t just fit neatly into some ‘Bush appointee’ slot at all.” A couple of quirks in the Texas state judicial system make it a bit dicey for anyone to look back on Bush’s judicial selections in Texas and figure out precisely how he will go about picking justices for the U.S. Supreme Court. First, the Texas Supreme Court, by law, is purely a civil court. A completely separate court, the Texas Court of Criminal Appeals, deals with the criminal side. By happenstance, Bush has made no appointments at all to that court because there have been no vacancies. This means that no Bush judges have written any decisions in the state’s highest court on such matters as capital punishment, the exclusionary rule, and criminal sentencing. Second, all Texas judges, trial and appellate, must run in partisan elections. The governor fills vacancies that result from deaths, resignations, or retirements. Appointed judges serve until the election for their seat comes up. As a result, nominations (and sometimes even court rulings) are tempered by the fact that the judges must face the voters every six years in political contests. Still, the Texas record is instructive. All of Bush’s Supreme Court appointees are Republicans, as in fact are all the other justices on the nine-member court. The four include one Hispanic, one woman, and one disabled person. By all accounts, Bush takes judicial nominations seriously. “We begin by taking applications of those who are recommended or those we learn about,” says Linda Edwards, the spokesperson for the governor’s office. “We ask them to fill out a questionnaire, but we never ask about their views on particular issues. Then we seek references, particularly from people who have practiced before them, or those who have been on the other side of the aisle.” Edwards says Bush interviews all finalists for the state Supreme Court and makes the decision personally. The impact of the Bush justices has been to strengthen the hand of the “moderate to conservative” wing of the court vis-�-vis a smaller, hard-line conservative bloc, says Anthony Champagne, a leading authority on the Texas Supreme Court. Champagne, a political scientist at the University of Texas at Dallas, says all four Bush justices — James Baker, Gregory Abbott, Deborah Hankinson, and Alberto Gonzales — can be classified as “moderate” or “moderate conservative.” The hotly contested political issues that come up on the civil court include consumer rights, tort complaints against large companies, cases involving abortion notification, and employer-employee disputes over firings and layoffs. “There are no clunkers, no embarrassments, no personal problems” among the Bush justices, says Champagne. “The remarkable thing is how widely vetted they are.” Baker, 69, was a Dallas civil litigator for nearly three decades and an intermediate appellate judge for nine years. Abbott, 43, was a partner at Houston’s Butler & Binion and was a trial judge; he was partially paralyzed 16 years ago when a tree fell on him while he was jogging. Hankinson, 47, a special education teacher before going to law school and finishing first in her class at Southern Methodist University School of Law, was a civil litigator for 12 years and briefly a lower appellate judge. Gonzales, 45, served as Bush’s gubernatorial counsel and then as Texas secretary of state. He had been a partner at Houston’s Vinson & Elkins. Champagne says that while he does not believe Bush uses a “litmus test” for judges on any issue, such a test exists implicitly “in the broadest sense imaginable.” “Bush is not about to make any appointments that push the court back to the plaintiff-dominated court of the era from about 1982 to 1988,” he says. “You’re just not going to see any Bush- appointed, first-rate plaintiffs’ lawyer on the Texas Supreme Court.” Outspoken columnist Molly Ivins said much the same thing in an Oct. 5 column in the Fort Worth Star-Telegram, giving it a liberal spin. “Bush has not made being militantly anti-abortion a litmus test for Texas judges, but he has made being pro-business a litmus test,” she wrote. But as Ivins conceded in her column, it’s not always that simple. In 1998, in two consolidated cases, Childs v. Haussecker and Humble Sand & Gravel v. Martinez, the issue involved just when the statute of limitations starts running in a damages case stemming from a slow-developing occupational disease such as silicosis. Injured workers said it begins only when the plaintiff receives a confirmed medical diagnosis of the disease, while the defendants contended that the statute kicks in as soon as the employee files a worker’s compensation claim or a lawsuit. In a sharply divided ruling, with the majority opinion written by Hankinson, the court rejected both sides’ views. Instead, it took a down-the-middle position. The statute runs as soon as the plaintiff has symptoms that would put a reasonable person on notice that he has a work-related injury, the court held. The other two Bush justices, Baker and Abbott, joined Hankinson’s majority opinion. (Gonzales had not yet been named to the court.) The court’s three-member conservative bloc dissented, saying that Hankinson’s opinion had used words “to mean many different things, and therefore almost nothing.” Another notable opinion was the 8-1 ruling in May 2000 in Ford Motor Co. v. Sheldon, a seemingly dry procedural case about appellate jurisdiction that evoked an extraordinary dissent by Baker. Ordinarily in Texas, the state supreme court lacks the power to overrule lower appeals court rulings granting class action status. But in 1997, the legislature passed a law permitting such appeals — but only in class actions involving motor vehicles. In the Sheldon case, Ford Motor and a Ford dealer attempted to appeal the certification of a class action filed against it by people who had bought cars whose paint was allegedly peeling off. The Texas Supreme Court reversed the class action ruling, finding that the legislature had “a reasonable basis” for the 1997 law permitting appeals of this type in motor vehicle cases. Baker, in dissent, wrote that he could not “conceive of a reasonable basis” for the automobile-only statute and that it was therefore a “special law” that is barred by the Texas Constitution. “By holding that [the law] is not a special law, the Court mocks the Constitutional prohibition of special laws and undermines our special law jurisprudence. In any event, we all know what is going on here!” the Republican, Bush-nominated judge wrote. The exclamation point was used to hit home an apparent reference to the clout of the car-dealer lobby in the legislature. Alexander, the Austin appellate lawyer, says Baker “is a very independent thinker who doesn’t hesitate to stake out a solo position. Everyone respects him, even if they don’t agree with him.” Champagne, the Dallas professor, says Hankinson is perhaps the best judge in a well-regarded group. “My impression from people I talk to is that she is the standout. There is very high quality mental material here.” As Gov. Bush indicated at the debate, the Bush justices are generally reluctant to find new rights or impose new obligations that the legislature has not approved. In the June 2000 case of City of Midland v. O’Bryant, five police officers sued because their jobs had been reclassified as civilian positions. They argued that the court should find a “duty of good faith and fair dealing” on the part of the police department. The Texas Supreme Court unanimously declined to find such a duty, saying that there was no basis in Texas law for it. “A court-created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship … and we accordingly decline to change the at-will nature of employment in Texas,” the court wrote. Champagne notes that there are some differences between the Texas scene and the national setting that ought to dampen political speculation about the judicial nominations of a President Bush. “This court’s jurisdiction is so limited that the interest groups’ involvement and the legislature’s involvement in appointments are very limited,” he says. “It’s hard to say that you can jump from this to the U.S. Supreme Court.”

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