New Texas blues

Seen from the lofty vantages north of the Red River or west of El Paso, Texas, politics often seems to be a dreary unchanging cavalcade of mediocre statesmen full of brittle, bitter men with little regard and plenty of disdain for the poor, the vulnerable and the oppressed. The national news seemed to affirm this view with the widely reported popular and hopeful run-up to the recent Texas Senatorial election by Robert Francis (“Beto”) O’Rourke, and his ultimate defeat by Rafael Edward (“Ted”) Cruz. Now that the show is over, the crowd has moved on to other news, but the real story of political change in Texas is more nuanced and interesting. O’Rourke’s rise brought some surprising results in the underlying framework of Texas politics that will be felt for many years.

First, a little background on Texas judiciary elections. When Texas became a state in 1845, following years as an independent republic, judges were appointed by the governor with state senate consent. Since 1876, judges at all levels have been elected in partisan contests. Over time, the corrosive effect of money impacted this process. In 1980, Texas became the first state in which the cost of a judicial race exceeded $1 million. Between 1980 and 1986, campaign contributions to candidates in contested appellate court races increased by 250 percent. Between 1992 and 1997, the seven winning candidates for the Texas Supreme Court raised nearly $9.2 million dollars, with more than 40 percent contributed by parties or lawyers with cases before the courts or by contributors linked to those parties.

Like flies to a cow patty, the obvious opportunity for corruption and financial control of the courts attracted individuals bent on using this opportunity to their own ends. Karl Rove, who started out in the dodgy world of direct-mail marketing, began his Texas political consultant career by focusing on the reality that the party that holds the courts gets the political cash. Rove’s strategy was to divert big business money that had flowed to Democrats for decades by getting Republicans elected to the Texas courts. As judges handed down pro-business rulings, businesses responded by shifting money to Republican candidates. The efforts by Rove and a swarm of his minions shifted basic politics in Texas from Democratic to Republican in the space of a decade.

But a seismic shift took place with the rise of O’Rourke and a resurgence of down-ballot populist candidates. Texas Democrats flipped the four influential state appeals courts that serve Austin, Houston and Dallas. Democrats now hold majorities on seven of the state’s 14 appeals courts — prior to the recent election, they held seats on just three. In the Dallas area, a long-standing Republican stronghold, an appeals court that had not elected a Democrat since 1992 now has a Democratic majority, including a Democratic chief justice. Longtime North Texas judge Ken Molberg came up about 70,000 votes short in his 2014 bid for a seat on this appeals court. This year, Molberg won by more than 80,000.

These wins must be kept in perspective. The appeals courts in Texas are intermediate courts whose decisions may be appealed to the state’s two highest courts, the Texas Supreme Court and the Texas Court of Criminal Appeals, which both remain fully Republican. Still, of the thousands of cases heard by the state courts of appeals, only a fraction of their decisions can be reviewed by the state’s two high courts, much less overturned, so the impact of these election results will be immediate and meaningful. The lame-duck justices reportedly are scrambling to close out cases before the end of the year, when their terms expire, especially cases for which they have already heard oral argument.

In a related election result, Faith Johnson, Dallas County’s Republican District Attorney, lost her re-election bid to Democrat John Creuzot. Johnson was well-known for her reluctance to cast a critical light on police activities, especially regarding allegations of excessive force. Voters seemed particularly repulsed by Johnson charging former Dallas police officer Amber Guyger with manslaughter, rather than murder, in the fatal shooting of Botham Jean in his own apartment. Jean was unarmed when Guyger shot him — she claimed she thought he was an intruder in her home. “Manslaughter is an inappropriate charge, based on the circumstances as I understand them,” Creuzot has said.

Murder by a police officer is a tough charge to prove. Since 2005, only three officers nationwide have been convicted of murder, with two of those convictions in 2018. Johnson had characterized herself as tough on crime, but the electorate challenged her as soft on alleged criminals carrying badges. No one thinks all police are bad, but Guyger’s flimsy pretense of a defense highlighted Johnson’s willingness to suspend proper prosecutorial discretion in favor of an apparently partisan approach. Creuzot, a long-time criminal-court judge and drug-treatment advocate, returns some reality to the office, and is another example of voters’ desire to restore balance to the judicial system.

Some lawyers in Dallas have been mourning the changes in the courts and the district attorney’s office with the lament of “inexperience” and “anti-business,” but the real complaint is that campaign money was not the guarantee of victory that it reliably had been. There was no “blue wave” carrying O’Rourke to victory, but the popular movement behind O’Rourke’s candidacy has provided Texas with a framework of newly elected judges, district attorneys, sheriffs, state and local legislators and member of congress. What Rove gained through strategically-placed money is now being undone by the evolving demographics of Texas (over the next 10 years, two million Latinos will turn 18 in Texas) and an electorate demanding change. Maybe we should’ve seen this coming after all — the state flower is the bluebonnet.

Ray Ramirez is an attorney practicing, yet never perfecting, law in Texas while waiting patiently for a MacArthur Genius Grant. You may contact him at patrayram@sbcglobal.net