Who would Bush appoint to the Supreme Court?

His Texas track record suggests they would be (what a surprise!) conservatives

by Seth Gitell

Change is afoot in the Supreme Court. Justices William Rehnquist and John Paul Stevens are widely expected to step down within the next four years. Ruth Bader Ginsburg and Sandra Day O'Connor -- both of whom have been battling cancer -- might also step down [see "sidebar tk," page {tk]. This means that the next president is sure to nominate at least two Supreme Court justices, maybe even four.

"You have some important doctrinal questions that are undecided," says Representative Barney Frank, the second-highest-ranking Democrat on the House Judiciary Committee. "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."

Al Gore is untested in this arena, but George W. Bush has a track record we can examine: as governor of Texas, he has appointed four judges as replacements for judges who stepped down from that state's high court. If given the chance to make Supreme Court appointments, what would George W. do?

According to Frank, he would name justices who would "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 football games. (The case will go before the US Supreme Court this session.)

A chorus of high-profile left-leaning court watchers, including Harvard Law professor Alan Dershowitz, adds that the Texas court system is one of the country's worst when it comes to protecting the little-guy. It's pro-business, anti-labor, and anti-plaintiff. Bush, these critics say, is to blame. "That whole court system in Texas bears his imprimatur -- every court level in Texas," says Dershowitz.

Is this the man we want selecting replacements for Supreme Court justices -- and thereby shaping the direction of the court for the next generation?

THE BEST way to answer that question is to look at the direction the Texas Supreme Court has taken with Bush as governor and his four appointees -- Deborah G. Hankinson, Greg Abbott, James A. Baker, and Alberto R. Gonzales -- as justices.

Phil Hardberger, the chief justice of the Fourth Court of Appeals in Texas and an award-winning legal scholar, doesn't find that direction an encouraging one. "By the end of the 1980s, the expansion of rights and remedies in the Texas court system had reached its apex," he writes in his starkly titled article "Juries Under Siege," published in 1998 in St. Mary's Law Journal. "The business community, manufacturers' associations, the interest groups representing health services and physicians, and the insurance industry were angry; they felt betrayed by juries and the entire judicial process . . . Things were ripe for a change. And change they did." Under Bush and his appointees, the Lone Star State was transformed 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.)

With the exception of Baker, a long-time judge, all of Bush's appointees came from large legal defense firms. And 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 in favor of 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.

Bush likes to call himself a "reformer with results." That moniker, says David Van Os, chairman of Texas's Travis County Democratic Party and a vocal Bush critic, has been earned through his record of tort reform, 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. The trend is to try to reverse jury verdicts and deny access to the courts for people that have been injured," Van Os says.

IN 1998 Van Os ran -- and lost -- against the Bush-appointed Abbott on a platform of moving the Texas Supreme Court back to the center from the right. According to the Texas Observer, Van Os spent a lot of time on the stump talking about a case called Texas Mexican Railway Company v. Bouchet. Lawrence P. Bouchet was a railroad worker who suffered a back injury on the job. His employer, the Texas Mexican Railway Company, didn't have a workers'-compensation plan, so Bouchet sued the company for compensation. When he sued, the company fired him. The issues in the case were whether Bouchet could then sue the company for firing him, and whether he was entitled to compensation for his injuries. In what can only be described as a case of circular reasoning, the Texas Supreme Court -- in a decision penned by Bush's man Abbott -- held that because the railroad company didn't subscribe to a workers'-compensation plan that prevented companies from firing workers who filed claims, the railroad company was free to fire Bouchet.

Van Os says the Bouchet case is a perfect example of justice, Bush-style. "The judges who have gotten elected to [the Texas Supreme Court] in the last 10 years have presented themselves as reformers under the masquerade of their reform banner," says Van Os. "What they've actually done is proceeded to take the court system in Texas away from the people. The people that Bush appointed were all corporate lawyers before they became judges. They are out of touch with the reality."

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. "They [Bush's appointees] have continually made it harder to litigate civil rights, consumer rights, workers' rights. There's no doubt with these judges that they are result-oriented," says James Harrington, the director of the Texas Civil Rights Project. "Quite often they overturn the court precedent to get to the result they want to get to. There is a discernible, steady trend downward, away from the protections that we have."

Says Van Os: "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."

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."

But not eradicating it altogether, as a 1996 Texas Supreme Court case clearly indicates. Dale Carpenter, the president of the Texas chapter of the Log Cabin Club, a group for gay Republicans, had arranged for booth space at that year's state Republican convention. Several months after these arrangements had been made, state GOP officials told Carpenter that the Log Cabin Club would not be permitted to set up a booth. Party officials first told Carpenter that the group couldn't attend the convention because the Log Cabin Club disagreed with the party platform, but they later said the group was banned because sodomy is illegal in Texas.

The Log Cabin Club filed suit and won in the district court of Travis County, a largely Democratic district. The case then took an odd legal twist: the state Republican Party appealed the lower-level court decision directly to the state supreme court, bypassing the court of appeals. If the Republicans had taken the case to the court of appeals in the Democratic district, the convention would have started before the supreme court could have heard the case -- and the Log Cabin Club would have been able to set up its booth. 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. By bypassing the appeals, the Republican Party won a chance to have the Log Cabin suit thrown out altogether.

"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 feted Abbott and the others at a reception at the convention.

But the swiftness with which the Texas high court acted wasn't the only unusual aspect of the case. The Log Cabin Club based its claim on the broadly worded free-speech provision of the Texas constitution, which 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 Club 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." But because the Texas constitution is so explicit, it seemed that the Log Cabin Club's suit had a good chance of success. 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 strictly interpreting of the state's constitution, they failed to walk the walk (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 in the opinion, 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 clear language in the Texas free-speech provision (something any true strict constructionist would have done). In other words, the Bush justices did everything but "strictly interpret" the state's constitution.

Staunch conservative jurists generally look to the plain language of the constitution. For example, conservative gun advocates are constantly spouting off about "the right of the people to keep and bear arms" -- the language of the Second Amendment of the US Constitution. But when confronted with a case where the plain language of the Texas constitution favored gay Republicans, these alleged strict constructionists decided to read into the language what they wanted. "They did not discuss the textual differences between the federal constitution and the Texas constitution," Carpenter says.

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. Indeed, the court has devised a new legal concept: "legal sufficiency of the evidence." This means that even if a jury rules 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 supreme court. "They've been reviewing and throwing out jury verdicts. They are really violating the Texas constitution by reviewing decisions of fact," Van Os points out.

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?" Generally, juries decide questions of fact; judges decide questions of law. Under the Texas system, the judges now get to decide both.

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.

At the time of the Log Cabin controversy, Bush went underground. Back then, Bush was worried about his 1998 campaign and winning re-election. He didn't want to alienate the Christian right in Texas, which had not yet warmed to him. The court's quick action let Bush stay above the fray and satisfy religious conservatives at the same time. Bush's high-court appointees did the dirty work.

None of the Bush judges on the court are particularly rabid conservatives. Rather, they are straightforward business conservatives. When contrasted with their predecessors on the court -- such as Nathan Hecht, the brilliant conservative theorist who spearheaded the Texas court's move to the right -- they appear moderate. Like Bush, they present a happy, diverse image of conservatism. One justice, Gonzales, is Latino. Another, Abbott, gets around in a wheelchair. Hankinson is a woman.

So what could voters expect from Supreme Court nominees selected by Bush? Justices who appear politically moderate-to-conservative and personally diverse. And, more important, justices who are rock solid on business issues. This will resonate at a time when massive class-action suits are the weapons of choice against seemingly intractable social ills. In a Bush regime, the Supreme Court would likely roll back the ability of people to sue large corporations the way they've been doing recently, with suits against tobacco companies and gunmakers.

On social issues there will slippage too, although it will be couched in technical language. One of Bush's justices -- Abbott again -- is currently in the middle of an abortion flap in Texas. Last month, the Texas Supreme Court ruled six to three against a measure that would have taken away a teenager's right to file a court appeal for a waiver of the parental-notification requirement. Abbott sided with the conservative minority. Bush, who opposes measures that make it easier for teenagers to get around parental-notification laws, had pushed for the abortion law. In the wake of the decision, Bush's spokeswoman in Texas vowed that the law would eventually be made even stronger.

If he is elected in the fall, Bush's first term will be much like his first term as governor, when he felt that he had to appease the right wing. As president, Bush will have one eye on his re-election in 2004 and will do what he can to keep religious conservatives happy. The record of Bush's high-court picks in Texas demonstrates that his version 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.

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 would 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. -- SG