Stay with me here, this will all make sense.
The Texas Democratic Party on Friday called for four of the state’s nine Supreme Court justices to recuse themselves from a case involving the Texas Republican Party’s in-person convention, claiming each had a conflict of interest.
The campaigns of Chief Justice Nathan Hecht and Justices Jane Bland, Jeffrey Boyd and Brett Busby each sponsored the convention, according to an archived list of sponsors that since has been removed from the Texas GOP’s website.
[…]
Texas GOP officials are seeking a writ of mandamus from the court that would block Turner from canceling the convention, a day after a Harris County judge denied the party’s attempt to do so in state district court.
Democratic Party Chairman Gilberto Hinojosa said the four justices, each of whom is up for re-election in November, are “faced with an obligation to do the right thing and choose the law over political allegiance.”
“A justice who funds a dangerous convention should not judicially decide the fate of that same convention,” Hinojosa said in a statement. “All four have interests in the case coming before them and all four should recuse.”
See here for the background. The allegation is that by sponsoring the convention and being on the November ballot, these judges have a conflict of interest. A press release from the TDP provided the following justification for the petition:
Canon 3(B)(1) of the Texas Code of Judicial Conduct provides that Texas judges “shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”
Texas Rule of Civil Procedure 18(b) requires a judge to recuse themself from a case when “(1) the judge’s impartiality might reasonably be questioned” or “(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”
I’m not qualified to assess this claim, but I will note that if the four Justices do recuse themselves, there’s still enough justices left to issue a ruling, and since all nine are Republicans it doesn’t change the dynamic. Given the compressed timeline for this litigation, I presume we’ll get an answer quickly.
Re: Incumbent Partisan Candidates Nathan Hecht, Jeffrey Boyd, Brett Busby, and Jane Bland (in order of seniority) & alleged partisan conflicts of interest
For all not blessed with exposure to the litigation process: Best way to piss of a judge is to file a motion to recuse. They are supposed to recuse/disqualify sua sponte if grounds exist, so they typically take offense – or shall we say umbrage — when told or motioned to do so. (How dare you question my impartiality?). So, the most compelling reason for filing such a motion is to piss off the judge. Likelihood of success very high! Might even be good to damages one’s career (as a lawyer) permanently. Stoop to impugn the integrity of any judge, and carry your reputational badge of dishonor with pride ever after.
Second, under the Texas rules of civil procedure judges are not supposed to deny a recusal motion (although they can grant it), but have to refer the matter to the regional presiding judge to assign another judge to hear it. Guess how they typically rule! And what are you going to do if your disfavored judge doesn’t even follow that rule and denies the motion, but then refers it to the administrative judge for a second opinion? (Guess who recently did that). It will likely be denied, then you are back before the judge who will blessedly be in a position to be even more impartial; — what with his or her prior impartiality just having been validated by another judge.
NO PARTY
None of this applies in this scenario, however, because the Dems are not a party to the case, and therefore can’t file a motion to recuse. I am not even sure that rule 18a et seq even applies in the supreme court, since it’s a trial court rule, and since the supremes are — well — supreme. Who you gonna call? — Occasionally a justice is asked to step aside (I remember seeing one example recently re: Justice Bland), but it better be well-pondered a litigation decision, and tactful in tone.
Regardless, the Dems’ press-release-of-whatever is just that. A press release. — Judicial campaign politics noise.
PRECEDENT
For recent historical context, also keep in mind that the Honorable Supreme Incumbents that are on the ballot in November didn’t recuse themselves from General Paxton’s mail-vote mandamus. And Justice Lehrmann didn’t recuse herself from the COVID-19-low-risk-for-most-voters “adjudication” even though she already had it, along with the rest of her family. She shared that via Twitter the day after oral argument, so that was some days before the opinion was issued pronto-pronto. I don’t think she should have stepped out. Much rather, I wish she had written a concurring or dissenting opinion, what with her familiarity with the subject matter. Her brethren and sistren — thanks again for the vocabulary enrichment assistance, mollusk — dismissed the medical expert’s amicus input and parsed dictionaries instead; and one supreme writer settled on a tertiary definition, if I recall correctly. Gee…. And the dictionaries don’t even have an entry for COVID-19 yet. Shouldn’t the public health experts and MDs be called in to help out? – But no. The appeal from the Sulak Order had to be preempted. After all, it landed before a panel consisting of 2 Dems and only 1 Republican.
GOP CONVENTION “SPONSORSHIP”
In my rarely-humble opinion, the recusal grounds are flimsy on the merits here. So-what if their campaigns logos were on the program or website? Everybody who cares to be informed about the Texas judicial system knows that the Supremes are partisan actors – de jure as much as de facto – so why shouldn’t their names and campaign logos NOT be associated with their party’s political convention?
What does that tell us (or imply) that is not already common knowledge?
SAFE VOTING FOR ME, BUT NOT FOR THEE
The much greater outrage here is that they ruled from the comfort and safety of home to deny Texas voters the right to vote from the comfort and safety of home based on COVID-19 risk.
If Justice Lehrmann had attended an in-person oral argument, they would all have been exposed to an active case in the courtroom and in conference.
I don’t blame them for conducting their proceedings on Zoom. Their common sense has already been vindicated.
But what about the rank and file, and what about the plebs at large?
Does their common sense, or lack thereof, have to be vindicated with a hospital admission, or a prosecution by the AG for not having acted upon a correct-enough understanding of absentee voting statute under the Supreme’s dictionary-informed reading, and a failure to anticipate how it will be applied in a forthcoming election-crime prosecution in light of the unique facts and circumstances of each case?
Every single Republican should learn from recent history. Jeff Sessions? Knew up front there was no ‘Russian collusion,” yet recused himself. Compare and contrast to Judge Berman, who should have recused from the Roger Stone case, but not only didn’t recuse, allowed a partisan D activist and erstwhile D candidate to be the jury foreman on his trial.
Lesson: Republicans and conservatives should NEVER recuse. Ever. Nancy Reagan was finally right about something…..just say no. The judges are going to be smeared and accused anyway, so there is absolutely no benefit to acceding to the outrage mob.
Their only response needs to be: “Uh, yeah, no, that’s not going to happen, but thanks for playing!”
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