Pragmatism Drove Bush In Texas Judicial Choices
Friday, July 8, 2005
Although legal scholars generally agree that President Bush has put his conservative ideological stamp on the federal courts, just the opposite was thought of his approach to the judiciary as governor of Texas.
During Bush's six years as governor in the 1990s, early judicial retirements and resignations allowed him to fill dozens of vacancies. It was a much less politically charged environment in Austin, unlike the current cacophony from interest groups seeking to influence Bush's choice to replace Sandra Day O'Connor on the U.S. Supreme Court.
In Texas, legal analysts across the political spectrum said Bush employed an open process that reflected how he presented himself as governor -- a pragmatist willing to build consensus. That approach had the effect of bringing many moderates and minorities to the bench. He made four appointments to the state Supreme Court, and legal observers said that moved the very conservative court closer to the center, appeasing consumer groups.
"My impression was that he kept the hard-line Christian right at bay back then," said Richard Murray, a political science professor at the University of Houston. "He relied heavily on an organization that could get good people identified first and foremost. There wasn't much of an ideological test."
Perhaps the most illustrative case demonstrating Bush's impact in Texas occurred as he was immersed in his presidential bid in early 2000. The majority on the state Supreme Court -- most of whom Bush had appointed -- issued a 6 to 3 decision that cleared the way for a 17-year-old girl to have an abortion without parental consent. The ruling, denounced by antiabortion advocates, is the reason many conservatives are uneasy about what direction Bush will take as he considers candidates to replace O'Connor.
Advocacy groups on both ends of the political spectrum are scrutinizing Bush's record in Texas. They said the type of judges he chose must figure into their analysis and strategies of how to contend with the president's Supreme Court choice.
"George Bush's judicial appointments as governor -- before he made his pact with the far right -- were generally pro-business conservatives who tended to be moderate on some of the social issues," said Ralph G. Neas, president of People for the American Way, which is leading the opposition to a strongly conservative appointment. "The problem as we see it today is that he later made irrevocable promises to the right to get elected that he would give them the courts."
It has been clear in recent days that the religious right evaluated Bush's Texas appointments as a way to gauge his intentions now: It began an assault against Attorney General Alberto R. Gonzales -- a close friend of the president's who was one of the Texas justices finding in favor of permitting the abortion in 2000 -- fearing he is not conservative enough.
Judges are elected in Texas, but Bush was nonetheless able to appoint four to the state Supreme Court to fill vacancies: James A. Baker, a state appellate judge and political supporter (not the former secretary of state); Greg Abbott, who had been a lower court judge and is now Texas attorney general; Deborah G. Hankinson, a defense lawyer; and Gonzales, who was Bush's general counsel and Texas secretary of state. Often included in the list of Bush appointees is Harriet O'Neill, whom Bush appointed to a lower court but who was elected to the high court.
"It is accurate to say that in the '90s the momentum moved from the far right to middle," said Craig Enoch, who served on the Texas high court during that time but was not a Bush appointee. "The middle, in my view, was not ideological -- but judges understood their role to interpret the law, not make the law."
Anthony Champagne, a political science professor at the University of Texas at Dallas, said that before Bush shaped the high court, "the joke used to be that judges never met an insurance company they didn't like."
"With the Bush appointees, plaintiffs could actually win," he said.
That came even as Bush was pushing tort reform while governor.
In some instances in the lower courts, Bush appointed moderate Democrats with the expectation that they would ultimately run for election as Republicans. Most did. One of those Democratic judges, who spoke on the condition of anonymity because he still practices in state courts, said he felt an obligation to Bush to run as a Republican even though he was from a Democratic district. He lost.
"I knew I would lose, but I did it out of loyalty," he said. Bush "had given me an opportunity," he added, "and I thought he was a decent guy."
Pat Oxford, a Houston lawyer, said that on "all levels of judicial appointments, there seemed to be very little political inspiration." He added: "It caused some controversy."
The 2000 abortion decision, which caused a rift on the court, is still reverberating for Gonzales. It involved a judicial bypass provision in a parental notification bill that would allow a minor who showed cause to avoid telling her parents.
The majority took the position that the 17-year-old girl had met the burden of showing sufficient maturity, one of the legal requirements, to bypass her parents. In the case, Gonzales found himself at odds with another justice, Priscilla R. Owen, whom Bush later appointed to the federal appeals court.
"My job [in that case] was to try and interpret what the Texas Legislature intended, what they wanted," he said in a 2001 interview. "My own personal feelings about a statute are immaterial. . . . My moral views on these issues are immaterial."
Clay Johnson III, a prep school and college friend of Bush's who is now a deputy director at the Office of Management and Budget, oversaw the judicial selection process during Bush's gubernatorial days. Some of those who were interviewed said they were required to fill out a long application detailing their legal experience. References were checked and Bush considered how the Texas Bar Association rated their skills, they said. Bush appointed a number of women and minorities.
Candidates said interviews centered on casual, personal questions as well as their view of the law and judicial philosophy. It was clear, they said, that Bush was not looking for people to make policy.
"Not once was I asked my position on any hot-button or social issues," said one woman interviewed for a high-level judgeship, who asked that her name not be used so she could speak freely in a politically volatile time. "He wanted to make sure I understood my job to be interpreting the law -- not making law. It was clear he didn't want activist judges."
Abbott, the Texas attorney general, said: "My firsthand experience was that he selected a person not on politics but on how serious a student of the law they were. I have no reason to believe ideology was anywhere on his radar screen. His appointments to the court ensured a balance, but I can't say that was intentional. I can say that his intention was to have good judges."
Research editor Lucy Shackelford contributed to this report.