A Political Defendant Faces a Political Judiciary

Tom DeLay can be hard to like.

The former House majority leader seems to see everything through a partisan lens. He says remarkably caustic things about his foes. When you think it might be a good time for him to be humble, he puts on a matador outfit and dances across your TV screen.

But put that aside if you’re able.

He goes to court on Wednesday in Austin, hoping to overturn his convictions for laundering campaign finances and for conspiring to launder that money, and to thus get out of a three-year prison term that hasn’t started yet. Another count drew him a sentence of five years of community supervision. He was convicted of trying to swap illegal corporate contributions for legal contributions that could be used in Texas legislative races.

The state’s 3rd Court of Appeals, a six-judge outfit made up of four Republicans and two Democrats, will hear his case this week. DeLay wants one of those Democrats — Judge Diane Henson of Austin — off the panel.

She appeared, as candidates will, on the stage of the state Democratic convention in 2006, preaching fire and brimstone, as candidates do. DeLay had a special place with the Texas Democratic Party at the time, kind of like the status Nancy Pelosi has with the national Republican Party.

He was their Voldemort.

For a shining moment, he seemed to be in the first line of every Democratic fundraising letter, the force against which the Democrats could raise their money and rally their supporters.

That was the context for Henson’s speech to the Democrats in 2006. Here’s how she started: “My name is Diane Henson. I’m running for Place 3 on the 3rd Court of Appeals, which is the court that sits in Austin next to the state Capitol. It is the court of appeals that would hear the appeal of Tom DeLay, if by chance he was convicted.”

Well, he was. And it is. And by the luck of the draw and the tuck of the tail, she is one of the three judges on the panel that is supposed to hear his appeal.

She wasn’t supposed to be on the panel. But one judge recused himself — he didn’t say why, and he doesn’t have to — and another asked to be removed. Both, incidentally, are Republicans who are up for re-election this year. One of their replacements then recused himself, leaving a pool of just three judges from which to choose a three-judge panel.

One of the three is Henson. That’s like discovering someone on the Dancing With the Stars panel doesn’t like sequins.

DeLay’s lawyer, Brian Wice of Houston, suggested in a letter to the Court of Appeals that Henson, given her comments, might want to recuse herself. When that didn’t change anything, he filed a formal motion with the court asking that she recuse herself because “a reasonable member of the public would harbor doubts that Henson was impartial.” He’s asking that the full court meet to decide the matter and he suggests that the Texas Supreme Court could appoint a replacement if too many of the appeals court’s judges have the sniffles, or conflicts of interest.

The court isn’t obligated to make any changes. Wice could, in his words, be “stuck like Chuck” here. He said (remember who the client is and what his arguments have been throughout the history of the case) that if Henson hears the case, there would always be an asterisk next to the decision. “This case is only about politics,” he said. “That’s all it’s ever been about.”

You don’t have to buy that, or believe that Henson is anything other than a fair-minded judge with the ability to look at DeLay’s case the same way she’d look at anything else.

But appearances matter. What judges do is largely done quietly and outside the view of the public. Save the argument about whether we should be holding partisan judicial elections at all.

This is a trust thing, and they have to act like this is a fair question: How would this look different if she was biased against DeLay and acted on her bias?

Just because he can be irritating doesn’t mean he’s wrong.