Who would Bush appoint to the Supreme Court?

George W.'s Texas track record suggests that his appointees would
be (what a surprise!) conservatives

by Seth Gitell

The next president is sure to nominate at least two Supreme Court justices. John Paul Stevens, 79, and William Rehnquist, 75, are widely expected to step down within the next four years. Ruth Bader Ginsburg, who had colon-cancer surgery last year, and Sandra Day O'Connor, who is nearing 70 and was treated for breast cancer a decade ago, could also step down. If they do, the new president could get four picks (see "Balancing Justice," below right).

With George W. Bush one election away from the presidency -- and from shaping the direction of the US Supreme Court for the next generation -- why have we heard so little about his record with the judiciary in Texas? Left-leaning court watchers, including Harvard Law professor Alan Dershowitz, say the Texas court system is one of the most pro-business, anti-labor, and anti-plaintiff systems in the country. Furthermore, they say, this is a new development. There was a time when down-home Texas populism was reflected in judicial elections and in jury verdicts that awarded plaintiffs large sums of money. In recent years, however, the Texas courts have come to exhibit a rock-ribbed conservatism. And at every juncture, Bush has sided with conservative initiatives to roll back plaintiffs' rights in favor of big money and big business.

"That whole court system in Texas bears his imprimatur -- every court level in Texas," Dershowitz says.

Senator Ted Kennedy, the second-highest-ranking member of the Senate Judiciary Committee, which vets Supreme Court nominations before the vote in the Senate, says that the issue of Supreme Court appointments is paramount. In a statement provided to the Phoenix, he says: "A president's appointments to the Supreme Court are among the longest-lasting legacies of any administration. The current court is often closely divided on key issues, and poor choices could easily result in judicial retreats on civil rights, women's rights, criminal justice, privacy, and the First Amendment."

Representative Barney Frank, the second-highest-ranking Democrat on the House Judiciary Committee, agrees. "You have some important doctrinal questions that are undecided," he says. "The abortion question is up for grabs. Gay and lesbian rights. Church-state issues. Nothing is more important than the Supreme Court justices the next president will pick."

A Bush presidency, Frank warns, would surely mean the appointment of justices who "substantially erode" the separation of church and state. Bush is, after all, the governor who authorized his attorney general to challenge a legal ruling that banned school prayer at school football games. That case is currently before the US Supreme Court.

---

Balancing justice The next President could dramatically transform the shape and direction of the US Supreme Court, which is currently divided between conservative and liberal wings. In the conservative wing are Chief Justice William Rehnquist (appointed by President Richard Nixon) and Justices Antonin Scalia (appointed by President Ronald Reagan) and Clarence Thomas (appointed by President George Bush). In the liberal wing are two appointees of President Bill Clinton's -- Ruth Bader Ginsburg and Stephen Breyer -- as well as John Paul Stevens (appointed by President Gerald Ford). The swing justices are Anthony Kennedy and Sandra Day O'Connor (both appointed by Reagan) -- with David Souter (a Bush pick) ruling with the liberal wing somewhat more frequently. Of these justices, Rehnquist is 75 and Stevens is 79. And both Ginsburg and O'Connor have had brushes with cancer. In a scenario in which only Rehnquist and Stevens stepped down -- and were replaced by conservatives -- the conservatives would hold a solid bloc of four. An exchange of even one more justice could ensure a five-person conservative majority. Such a change would have a direct impact on many areas of law. So-called church-state cases have been sharply contested in recent years -- and cases involving abortion rights could also arise. "I'm not sure the American people grasp the importance of the Supreme Court and how that plays out in the presidential election," says Robert Boston, a spokesman for Americans United for Separation of Church and State. "If Stevens steps down, a conservative replacement would solidify the conservative bloc." A changed Supreme Court could have the biggest impact of all in cases involving the Internet and biotechnology, where the law has yet to catch up with technology. When the Texas Supreme Court, where Bush has appointed four of the nine justices, ruled on an important case involving biotechnology, it came down in favor of big business and against the needs of a child with a genetic disease. The case, Provident American Insurance Co. v. Castaneda, involved an insurance company whose young client's uncle had been diagnosed with the same genetic disease that affected her. The court ruled that the company could decline to cover her costs on the grounds of the relative's diagnosis. In other words, the firm likened the uncle's genetic disease to a pre-existing condition of the child, and the court upheld that position. This is the very type of question that the Supreme Court could face in the next four years. -- Seth Gitell

The best predictor of the kinds of choices Bush would make for the US Supreme Court, though, is the direction he's taken with the Texas Supreme Court. Although Texas high-court judges (who hear only civil matters) are elected to office, the governor of Texas is responsible for filling vacancies when sitting justices step down. Bush has done this four times. His picks: Deborah G. Hankinson, Greg Abbott, James A. Baker (no relation to the James Baker who served as President Bush's secretary of state), and Alberto R. Gonzales. These appointees come from mainstream conservative backgrounds. Like Bush, they present a happy, diverse image of conservatism. One of them, Gonzales, is Latino. Another, Abbott, gets around in a wheelchair. Hankinson is a woman. But make no mistake: they come from big-business backgrounds and support efforts to limit plaintiffs' rights.

On the campaign trail, Bush has said he would appoint "strict constructionists" to the Supreme Court -- justices who would "strictly interpret the Constitution and not use the bench as a way to legislate." This type of strict interpretation is a conservative touchstone, but if Bush's Texas high-court picks are any indication, he'd choose justices who would apply just the opposite philosophy -- in pursuit of conservative ends. James Harrington, the director of the Texas Civil Rights Project, says that Bush's picks have made it harder to "litigate civil rights, consumer rights, workers' rights." He adds that these justices care more about conservative political correctness than legal reasoning. They are, in Harrington's words, "results-oriented" -- conservative judicial activists hiding behind the constructionist label.

In fact, the rollback of plaintiffs' rights in Texas is what Bush is talking about when he calls himself a "reformer with results." Which raises the question: who, exactly, is Bush reforming the legal system for? The Texas governor's credibility as a reformer rests partly on his record of tort reform. He seldom talks about the subject, but Bush's appointees to the Texas Supreme Court have orchestrated the Lone Star State's transformation from one of the best places for an individual to sue a big company into one of the worst. This transformation is a big part of Bush's conservative appeal; it's one of the main things that make him so attractive to nationwide business and legal-defense circles -- which is where he got much of the $70 million he so easily raised. (Of course, the Democrats -- i.e., Clinton and Gore -- have done well with lawyers too, but the bulk of their money has come from the plaintiffs' bar, trial lawyers, and personal-injury attorneys.)

David Van Os, former chairman of Texas's Travis County Democratic Party and a vocal Bush critic, says Bush has earned his "reformer with results" moniker at the expense of the working people of Texas. "Bush appointees have been part of the trend of much that goes under the rubric of tort reform," he says. "The trend is to try to reverse jury verdicts and deny access to the courts for people that have been injured. These people are not strict constructionists. This is a judicial activist court. They use the `strict constructionist' code word to get the votes of conservative voters."

Phil Hardberger, the chief justice of the Fourth Court of Appeals in Texas and an award-winning legal scholar, captured the prevailing conservative mood of the Texas legal environment in his starkly titled article "Juries Under Siege," published in 1998 in St. Mary's Law Journal. Hardberger wrote that by the end of the 1980s, business and manufacturing interests had teamed up with physicians' groups and the insurance industry to roll things back for defendants in Texas.

According to a report produced by Court Watch, a nonprofit consumer-advocacy group set up by former journalist Walt Borges to monitor the Texas court system, the Texas Supreme Court decided for defendants 60 percent of the time between 1998 and 1999. The report, written by Borges, lists 10 cases that exemplify the court's pro-defendant bent. In one case, the court held that an insurance company did not have to pay for the care of a child who had a genetic disease because her uncle was diagnosed with that disease during the exclusion period. In other cases, the court ruled against workers exposed to asbestos, against car-insurance holders injured in accidents, and against the family of a murder victim who had not been warned by the killer's psychologist, although the psychologist was aware of the killer's intentions.

---

In Bush's Texas, workers get screwed by the courts. Two years ago Van Os ran -- unsuccessfully -- against the Bush-appointed Abbott on a platform of moving the Texas Supreme Court back to the center from the right. During his campaign, Van Os turned again and again to the case of Texas Mexican Railway Company v. Bouchet.

Lawrence P. Bouchet had the misfortune of working for a railroad company that didn't subscribe to a workers'-compensation plan -- and then getting hurt on the job. Generally, injured employees collect workers' compensation instead of suing their employers for on-the-job injuries, but that wasn't an option for Bouchet. He sued Texas Mexican Railway for compensation, and the company responded by firing him. And what did the Texas Supreme Court find under the leadership of Bush's appointee Abbott? That Bouchet had no rights. In what can only be described as a case of circular reasoning, the Texas Supreme Court -- in a decision penned by Abbott -- held that because the railroad company didn't belong to a workers'-compensation plan that prevented companies from firing workers who file claims, the railroad company was free to fire Bouchet.

Van Os says the Bouchet case is a perfect example of justice, Bush-style. Bush's "reformers," led by Abbott, have made life in Texas harder for ordinary people. "What they've actually done is proceeded to take the court system in Texas away from the people," he says. "The people that Bush appointed were all corporate lawyers before they became judges. They are out of touch with reality."

To be fair, some court observers and Bush watchers say that although the Bush judges are pro-business and pro-defendant, they are far more "moderate" than their more conservative predecessors. "His judges tend to be moderate-conservative judges," says Anthony Champagne, a professor at the University of Texas at Dallas. "Bush has quite an impressive record when it comes to Texas. His appointees have been a moderating force on the Texas Supreme Court. They are pro-defense, but not extremely so. They tend to often be well regarded by people on both sides." Even Court Watch reported that "a contingent of four justices initially appointed by Gov. George W. Bush appear to be intent on eliminating the excesses of the GOP old guard elected between 1988 and 1994." Still, Texas conservatives understood that Bush's judges would follow the lead of those parked further to the right. During Abbott's 1998 election run, he raised money from business and defense interests under the "reform" banner. One of his fundraising letters reads: "His election to a full six-year term is critical to continue the reform movement that has done so much to return balance, fairness, and impartiality to the Supreme Court."

---

Texas courts, with Bush's blessing, have also pushed a socially conservative agenda. One of the best examples of the damage that conservative politics can inflict when they team up with a similarly conservative judiciary came in 1996, when Bush looked to his court appointees to get him out of trouble with the religious right. Bush, midway between his successful 1994 gubernatorial bid and the 1998 re-election that set him up to run for president, found himself in a jam: the Log Cabin Republicans, a gay political group, had successfully applied for a booth at the state's Republican convention. When Republican officials rescinded their approval in late May, just a month before the convention, the state president of the Log Cabin Republicans, Dale Carpenter, took the state GOP to court. He won in Travis County district court. But then the case took an odd legal twist: the state Republican Party appealed the lower-level court decision directly to the Texas Supreme Court, bypassing the court of appeals. If the Republicans had turned to the court of appeals in the widely Democratic district, it's likely that they would have lost. The convention would have started before they had time to appeal again -- and the Log Cabin Republicans would have set up their booth. By bypassing the appeals court, the Republican Party won a chance to have the Log Cabin suit thrown out altogether. In general, the Texas high court, like the high courts of other states, is difficult to reach; getting there requires a time-consuming appeals process. But not, apparently, when it comes to defending against suits filed by gay Republicans.

"I am not aware of another instance in the history of Texas jurisprudence where a party [in a lawsuit] has done this," Carpenter says. "You'd expect that the [state] Supreme Court would tell them no. Instead the Supreme Court granted a hearing for [the following] Monday [after the appeal was filed]. On Wednesday the court ruled against us. Justice in Texas has never been so swift."

Again, the opinion was written by Bush's Judge Abbott. Only nights later, the Republican leadership fêted Abbott and the others at a reception at the convention.

But the swiftness with which the Texas high court acted wasn't the only disturbing aspect of the case: the opinion itself reflected the extent of Abbott's socially conservative judicial activism. The Log Cabin Republicans had based their claim on the Texas Constitution, under which they thought they had a better chance of winning. Unlike the US Constitution, the Texas Constitution gives individuals affirmative rights to free speech. The relevant provision of the Texas document reads: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege." The Log Cabin Republicans believed that this guarantee of an individual's rights could also be legally extended to cover the rights of a private group. Similar suits brought on a federal level had failed, based on the US Constitution, which says more narrowly that Congress "shall make no law . . . abridging the freedom of speech." This was the first case of its kind for the Texas Supreme Court.

Though Abbott and the other judges paid lip service to the idea of doing the politically correct conservative thing -- strictly interpreting the state's constitution -- they actually did the exact opposite (one judge agreed with the decision but wrote his own opinion instead of joining the majority). "When interpreting our state Constitution, we rely heavily on its literal text," Abbott wrote, and then proceeded to examine the central question in the case -- whether the Texas Bill of Rights could be applied to private groups -- without looking at the direct language in the Texas free-speech provision. In other words, the Bush justices did everything but "strictly interpret" the state's constitution.

What those judges did, in fact, flew in the face of what so-called strict constructionists generally do. But, under Bush, this kind of conservative activism from the judiciary is nothing new. For example, the Texas Supreme Court has devised a new legal concept: "legal sufficiency of the evidence." This means that even if a jury finds in favor of a plaintiff, the court can throw out the verdict on the grounds that the evidence that convinced the jury did not satisfy the high court. Generally, juries decide questions of fact; judges decide questions of law. (A question of fact is one like: "Did the driver's negligence cause the accident?" A question of law might be: "What standard does a jury apply to determine negligence?") Under the Texas system, the judges now get to decide both.

Van Os says the Log Cabin suit isn't the only case in which the Texas Supreme Court has reached far beyond its mandate with the state constitution. "They've been reviewing and throwing out jury verdicts. They are really violating the Texas Constitution by reviewing decisions of fact," he points out.

---

The bottom line? Like Bush, his judges are slick. They want to have things both ways, appealing to the middle ground and conservatives alike. Cases tossed out are not done so with the kind of stark, blunt language that sticks in voters' craws. Rather, the wording of their decisions comes across as measured and reasonable.

The goings-on in Texas very much reflect the lurches to the right that have gotten Bush in trouble in his presidential campaign. They are the legal equivalent of Bush declaring Jesus Christ his most influential political philosopher and going to Bob Jones University to launch his presidential effort in South Carolina. Bush's symbolic actions have direct legal consequences. Bush has pushed -- and is pushing for -- a tough parental-notification provision regarding abortion. He made sure Texas intervened in a controversial school-prayer case, on the side of prayer. He benefited when his judges kept the Log Cabin Republicans out of the state party convention in 1996. This record suggests that Bush will look to presentable but conservative justices to fill up his Supreme Court. If he's elected to the presidency, his picks are sure to carry out a socially conservative agenda and do his dirty work, as his appointees in Texas did in the Log Cabin case.

Just last month, one of Bush's justices -- Abbott again -- sided with religious conservatives on an abortion issue. He ruled with the conservative minority in a six-to-three decision that ended up affirming a teenager's right to file a court appeal for a waiver of the parental-notification requirement. Expect a Bush-stacked Supreme Court to roll back abortion rights. Expect it also to limit the ability of plaintiffs to sue large corporations the way they've been doing recently, with suits against tobacco companies and gunmakers.

Bush's first term as president would probably not differ much from his first term as governor, during which he felt he had to appease the right wing. He would keep one eye on his re-election in 2004 and do what he could to keep the religious conservatives happy. The record of Bush's picks in Texas demonstrates that his idea of reform comes at the expense of working people -- and that he is anything but a compassionate conservative.

Seth Gitell can be reached at sgitell[a]phx.com.