There’s more than one way to attack Democratic appellate court justices.
Sen. Joan Huffman
The Texas Senate passed a bill Wednesday to create a new statewide court of appeals that would hear cases that have statewide significance — including ones that challenge state laws, the constitution or when the state or its agencies are sued.
Currently, when such cases go to the intermediate appellate level, they are mostly heard by the 3rd Court of Appeals based in Austin. That court’s judges are elected by voters in Democratic-leaning Travis County. Senate Bill 1529, though, would send the cases to the new appellate court whose judges would be elected by voters statewide — an electorate that skews Republican.
Some of the state’s highest profile cases could be affected by this proposed court. Bill author Sen. Joan Huffman, R-Houston, said that recent lawsuits surrounding Gov. Greg Abbott’s pandemic emergency orders are examples of types of litigation the proposed court would have jurisdiction over.
Critics say the proposed new court is a Republican attempt to yank jurisdiction of these cases from Democrats.
The Austin-based 3rd Court of Appeals has five Democrats and only one Republican. Currently, all statewide elected judges are Republican, including on the Texas Supreme Court — and it’s likely the proposed court would also be all Republican.
“Since the [3rd Court of Appeals] deals with issues facing state government, it’s a thorn in the Republican Party side,” Mark P. Jones, a political science fellow at Rice University, said in an interview. “And so by transitioning that by moving that to a statewide election where Republicans have the advantage, they would be able to, most likely, flip from being a Democratic majority… to a [5-0] Republican advantage.”
Huffman maintains that she wrote the bill to promote consistency — not for partisan reasons.
“The new court has five justices elected statewide so that all Texans have a voice in electing those who decide cases of statewide significance,” she said from the Senate floor Tuesday. “It’s important for judges deciding cases of statewide importance to be familiar with specialized jurisprudence to provide consistent rulings for state litigants.”
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Democrats on Tuesday raised constitutional concerns related to this bill, asking if the Legislature has the authority to create an appellate court with statewide jurisdiction, overlapping the current district system. Huffman maintains that it does.
“We’ll have to see you in court on this one,” Sen. Nathan Johnson, D-Dallas, said.
Darlene Byrne, chief justice on the 3rd Court of Appeals and a Democrat, said in an interview she thinks the bill is “bad policy and bad for statewide jurisprudence.”
Byrne also said the new structure would promote large campaigns.
“I don’t know of a Supreme Court race that costs less than a million dollars per candidate,” she said. “So this new statewide court is going to be mega-big donors infusing big money to influence the judiciary. And I thought we were trying to get away from that — but apparently not.”
Linda Thomas, a former Republican chief justice of the Texas Fifth District Court of Appeals, said she believed the bill was unnecessary.
“As a retired judge, I think it’s a little disingenuous, and in some ways, insulting to the sitting justices of this state to indicate that they are not capable of handling complex business cases,” Thomas said.
I noted this in passing in my initial post about appellate court redistricting, the bill for which has since been withdrawn for the time being. I tend to agree with Justice Thomas, and I also think that insult was a feature and not a bug. Sen. Huffman’s justification for this new court is ridiculous on its face, because all of the lawsuits in question start out in a district court, with a judge that was elected by local voters in far lesser numbers than for appellate court justices. That’s not exactly conducive to “consistent rulings for state litigants”. Why not go whole hog and create an entirely separate court system for “cases of statewide importance” (whatever that means, and I’ll bet that very topic becomes a contentious point of appeals in itself) so as to avoid local yokel judges making insufficiently erudite rulings? One could argue that Sen. Huffman is actually making a back-handed case for ending the election of judges in the first place. At least that would be a more honest approach to this.
I have no idea what the prospects are for this in the House, but I do feel confident that there will be litigation if and when this does pass. That lawsuit would eventually come before a district court of appeals, as one presumes it would be halted from taking effect pending the litigation, before ultimately being decided by the Supreme Court. I’ll leave it to you to sort out where that all lands on the Irony-o-Meter.
We already have a court with jurisdiction that extends statewide, with justices that are elected statewide, who are all Republicans (at the moment), and that concentrates on cases of statewide significance.
It’s called the Texas Supreme Court.