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Texas Supreme Court
Tue December 4, 2012
In Judicial Picks, Perry Reaches Past Executive Branch
Originally published on Mon December 3, 2012 4:00 pm
Jeffrey Boyd will become the newest Texas Supreme Court justice, an appointment that scrunches the foreheads of Rick Perry critics who think it odd that the governor would name his chief of staff to the state’s highest civil court.
It’s the latest brick in a wall Perry has been building for a dozen years — a period that has seen him appoint 224 Texans to state district and appeals court judgeships.
His hold on the executive branch is well documented and regularly noted; Perry has been in office long enough to twice go through the entire cycle of six-year executive appointments.
The executive offices in agencies throughout the executive branch are populated with former staffers, aides and allies. He owns the executive branch in a way that might be common in states with cabinet governments, but that is nearly impossible in Texas, where the Constitution was designed to limit the powers of the governor.
Texas judges are elected, but openings between elections are filled by the governor’s appointments. Those appointees have to stand for election eventually, but they get to run as incumbents, raise money as incumbents and use their appointments as a sort of implicit endorsement by the state’s top Republican officeholder.
Boyd, whose appointment must be confirmed by the state Senate, is just the latest example.
Anyone looking for new evidence of cronyism will cite Boyd’s appointment. Perry has found judges within spitting distance of his own office before, when he named his general counsel, David Medina, to the Supreme Court in 2004. Perry’s predecessor, George W. Bush, did it, too, moving Alberto Gonzales from the lawyer job to the court.
Boyd has never donned the judicial robes, but he might turn out to be a great jurist.
And he’ll join other Perry appointees. Since he became governor in 2000, Perry has named 10 people to the high court, including seven of the nine current ones (counting Boyd). The state has 554 judgeships, including 98 appellate slots and 456 district courts, according to the state’s Office of Court Administration. Most of those jurists got into office without the governor’s direct help.
Perry doesn’t have the same clout with the courts that he has in his own branch of government. He and his staff can and do pick up the phone and talk to appointees or state agency employees about coming actions, votes or hires, usually without drawing much attention or ire.
All he can do on the judicial side is pick people who generally agree with his ideas about judicial philosophy and the law. It’s a bit of a crapshoot, because those judges are free, once appointed, from any accountability to the state’s chief executive. It’s no sure thing, but in the case of the high court, the result is a judicial panel with a decided bias in favor of business defendants.
The appointment isn’t always a ticket to election, either. Justice Medina was elected once but got beaten in the Republican primary this year and will be replaced in January by Houston Republican John Devine.
He did better, initially, than Xavier Rodriguez, Perry’s second appointment to the Supreme Court (Wallace Jefferson, now the chief justice, was the first). Rodriguez was appointed in 2001 and lost the 2002 Republican primary to Steven Wayne Smith. His loss was widely attributed to the difficulties of winning a Republican primary with a Hispanic surname; 10 years later, the Republican voters who tossed Medina also supported Ted Cruz for the United States Senate. And Rodriguez came out okay; President Bush appointed him to the federal bench, where he labors still.
Appointees in the executive branch generally don’t stray far from the wishes emanating from the governor’s office. Perry has appointed dozens of conservatives to judgeships in Texas, but they don’t always remain on the leash after they take office.
Take Rodriguez. Appointed by Perry and then by Bush, he was part of the three-judge federal panel in San Antonio that bounced the Republican-drawn Legislature’s redistricting maps plans this year.
No telling what they’ll do after they’re appointed.