Who would Bush appoint to the Supreme Court?
George W.'s Texas track record suggests that his appointees would
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.
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.
The next President could dramatically transform the shape and direction of the
US Supreme Court, which is currently divided between conservative and liberal
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
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
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
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
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.
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
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
"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
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
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
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.