Tipping the Scales

Karl Rove believed the way to the political soul of a state was through its courthouses — the renowned strategist got his start pushing Republicans onto district court benches.

The Texas Democratic Party, by contrast, tends to focus on legislative races. But it won’t be the first time Democrats rue their lack of a Rove-like Svengali if the state party doesn’t prioritize one state Supreme Court contest that could fracture Republican hegemony on the highest civil court for the first time in more than 10 years.

That would be the upcoming matchup between Democrat Jim Sharp and an as-yet undetermined Republican — either former state Rep. Rick Green, R-Dripping Springs, or Fort Worth district court judge Debra Lehrmann, whose runoff will be decided on Tuesday — for the Place 3 seat that Harriet O’Neill will vacate at the end of the year. Since it's an open seat — the first one on the court since Deborah Hankinson decided not to seek re-election in 2002 — Sharp, a justice on Houston's 1st Court of Appeals, won’t have to face an incumbent’s political machine. And no matter who wins the GOP runoff, Sharp will have the advantage of being the only candidate with appellate court experience.

The idea of the baggage-laden Green winning the nomination is “just delicious” to Democrats like Susan Hays, the former Dallas County Democratic chair and an appellate lawyer active in judicial politics. “The odds of a Democrat winning increase tenfold if Rick Green is the Republican nominee,” says Hays, because he “gives the Democrats someone to run against who has problems that anybody can understand.”  

Green’s questionable history — those ethical lapses; that late-night infomercial; that public altercation with his successor, state Rep. Patrick Rose, D-Dripping Springs — and his unabashed assurances that, because of his background in the Legislature, "you'll know how I'm going to vote” already give ample ammunition to his critics.

“We’ve got a court that’s hurting for seasoned experience, and throwing a Rick Green on it is going to be a worse blow than losing Xavier Rodriguez,” Hays says, referring to the 2002 Republican primary defeat of Harvard-educated Rodriguez, a relatively recent Rick Perry appointee, by Steven Wayne Smith. Smith was best known at the time for litigating Hopwood v. Texas, an anti-affirmative action lawsuit against the University of Texas. He spent less than $10,000 in his campaign to oust Rodriguez, who spent nearly $500,000 trying to hold the seat.

The concern over Green extends to his own party. An April 2 letter circulated to Republican voters — from former GOP Supreme Court Chief Justice Tom Phillips and John Coppedge, a Longview doctor and Republican political operative — cautioned them not to jeopardize the court’s reputation “by electing someone who is likely to attract criticism and ridicule for himself and our entire judiciary.” And since the primary, Lehrmann has raised almost $280,000 and picked up endorsements from Phillips and four other former Supreme Court justices, the Texas Medical Association and Texans for Lawsuit Reform.

Still, Green has a motivated base of social conservatives backing him, carried over from his time in the Legislature and one of his current enterprises, WallBuilders — he makes specehes for the Aledo-based activist group, which disputes the validity of the separation between church and state. His campaign kitty, about $75,000, holds considerably less than Lehrmann’s, but Green’s donations are mainly smaller contributions under $100, which could translate to more supporters.

Even with Green as his opponent, Sharp won’t exactly waltz into a general election victory. A look back to 1988, when Phillips and Eugene Cook became the first Republicans elected to what was then a deep blue court, shows that even Green's ethically murky past might not be enough to clear a path to victory.

In the midst of Phillips’ campaign against Ted Robertson, the court received national attention for its bad behavior. Two justices, C.L. Ray and William Kilgarlin, had pending ethics charges against them for too-cozy relationships with members of the State Bar, and the court had just decided not to hear the Pennzoil v. Texaco case, in which a lower court handed down a record-breaking punitive damages verdict against Texaco. Commentators attributed that decision to the large sums of money Pennzoil lawyers had donated to justices on the bench. Implications of corruption prompted a 60 Minutes segment called "Justice for Sale" and a New York Times editorial to decry Texas courts as dispensing "what passes for justice in small countries run by colonels in mirrored sunglasses."

Phillips — who was still trailing his opponent 10 days before the election and won only after a strong last-minute surge — thinks the Democrats will have an even harder time than he did, and not just because deep-red Texas hasn't elected a Democrat statewide since 1994. The atmosphere surrounding a possible Sharp/Green race would be "worlds different," he says. Back then, "you had widespread unpopularity with the court, substantively with its decisions and procedurally among lawyers, who thought that some of their cases were a grab, that the court was reaching out to make decisions it wanted to make rather than the ideal fact pattern."

Today, he says, "there's no national attention, no state officials mad at the court, no calls for impeachment of the justices."

Hays contends that the ethics problems on the court today are “just as bad as late '80s” but just aren’t getting the same coverage. She's referring to the three current justices who have faced ethics complaints: Nathan Hecht, Paul Green and David Medina.

In 2006, Hecht became the first justice to be sanctioned by the State Judicial Conduct Commission since Ray and Kilgarlin in 1987 for publicly supporting Harriet Miers’ 2005 nomination to the U.S. Supreme Court (sitting judges are not supposed to use their office to campaign for other candidates). He was later fined for accepting a discount from the attorney who represented him in his appeal of the commission’s decision. 

Medina and his wife were indicted on charges connected to a 2007 fire that burned their Houston home to the ground. The Houston Chronicle reported that investigators viewed the blaze suspiciously because the Medinas were having financial problems at the time; it came after they had let their insurance policy and homeowner’s association fees lapse and a year after they had undergone foreclosure proceedings. After a grand jury indicted the Medinas, the Harris County District Attorney threw out the charges, a move the jury’s foreman said was politically motivated.

Medina and Paul Green also both faced complaints for using campaign contributions to reimburse travel expenses.

Sharp says he hasn’t thought about whether his chances will improve if Rick Green comes out on top in Tuesday’s runoff. He says he's running because he believes having a Democrat on the court — he'd be the first since 1999 — "just changes the tenor of the conversation."

"They know I’m not going to go-along-get-along," he says. "They know that if they want to run that run, they’re going to have to come through me."