This AP article considers the effect of the ridiculous Ken Paxton lawsuit and the role that the Republican Attorneys General Association played in the insurrection at the Capitol and asks the question from the title.
Best mugshot ever
Some legal experts think the overt political involvement by the Republican attorneys general could have a lasting effect on how judges view legal actions their offices bring.
“States occupy a unique position and an important position” in the courts, said Paul Nolette, a Marquette University political scientist who studies attorneys general. “If it turns out that AGs are no different from another politician or another interest group just looking for an angle trying to get into the courts, the courts could revisit special solicitude.”
The term refers to a state’s ability to unilaterally weigh in on any federal lawsuit, giving attorneys general and their states a say in a wide variety of issues.
Attorneys general are elected to office in most states and frequently use the job as a platform to run for governor or the U.S. Senate. Their offices serve as the legal arm of state governments, and they often band together — almost always with AGs of their own party — to challenge federal policy.
They also file claims on behalf of their state’s residents over consumer affairs and antitrust matters. Every state’s AG’s office, for example, has sued companies over the toll of the opioids crisis.
Most attorneys general also are the top law enforcement officers in their state, prosecuting criminal cases and upholding justice.
Greg Zoeller, a Republican and former Indiana attorney general, said attorneys general could lose the right to file “friend-of-the-court” briefs in any federal case without permission because of the activities of the Republican AGs in support of Trump’s election claims.
But he said the work of prosecuting crimes and protecting consumers is handled mostly by career government lawyers who are not focused on political cases.
“You can still have a very strong law office that represents the best interest of the state, the people, when it comes to consumer protection issues,” he said.
[…]
The push to overturn election results based on unfounded fraud claims did get some GOP pushback. Eight Republican attorneys general opted against joining Paxton’s effort.
One of them, Ohio Attorney General Dave Yost, urged the U.S. Supreme Court to consider the case — but rule against Texas.
“Federal courts, just like state courts, lack authority to order legislatures to appoint electors without regard to the results of an already-completed election,” he said in a statement last month.
Sylvia Albert, the director of voting and elections for the liberal advocacy group Common Cause said the filings were so troublesome that she believes there are grounds to disbar the attorneys general who made them.
“When you submit something in court, you’re saying: ‘To the best of my knowledge, the information I’ve given you is true and valid,’” she said.
It’s always nice to think that there will be consequences for illegal or immoral actions, but I’m going to need to see it happen before I put too much faith in the possibility. Ken Paxton is as far out there as any Republican AG, and he’s continuing to file petty lawsuits of questionable merit, and so far he hasn’t been dealt a significant setback. Either the FBI with the Nate Paul case or the voters next year – hopefully both – will be left to do that task. If the courts want to push back even a little before then, that would be fine by me. Let’s just say I’m not expecting much.
Not only are Republicans the party of sedition, by circling the wagons around Greene they have refashioned their so-called “big tent” to include everyone from traditional fiscal conservatives to loathsome Nazis and white supremacists, fanatical militia members and extremists, and wackadoodle conspiracy theorists. In short, the GOP is now a big tinfoil tent
“Some legal experts think the overt political involvement by the Republican attorneys general could have a lasting effect on how judges view legal actions their offices bring.”
Wow. This reminds me a lot of the black woman who ran for New York AG, on a platform of ‘get Trump.’ I wonder if judges will view her legal actions against Trump, and against White people in general, through the lens of her overt racist, partisan campaign to get elected?
As lawyers we have professional obligations to be truthful to the court and to act in good faith when asking for extension of existing law to new situations. Over time you inevitably gain a reputation of one sort or another. The extension of this is that if you gain a reputation for grandstanding it’s inevitably going to subject your motivations to closer inspection, regardless of the position you’re trying to advance.
ATTORNEY IDENTITY AS SIGNAL AND DRIVER OF CASE DISPOSITIONS
Re: “Over time you inevitably gain a reputation of one sort or another.”
mollusk raises a good point (which not everyone sees as a problem):
Courts deciding cases based on the identity of the attorney and what they think of him/her (or law firm, more broadly).
That works great for “General Paxton” in the Texas Supreme Court. Why? – Because of his reputation: He is one of us and he reliably does our bidding (though in practice through “General Hawkins”, see https://en.wikipedia.org/wiki/Kyle_D._Hawkins).
The royal “we” or “us” — and the identity of interest here — takes the form of the State controlled by the GOP as it should be and should remain. Paxton expressly goes to court as “the State of Texas” and advises the Supreme what to do. If not already a party in a politically-charged case, the Solicitor General is expressly asked (“solicited”) by the Supreme Court for the views of “the State”. That, in effect, means the views of AG Paxton since his “client” is a juridical entity without a voice. The evil Democrats are the ones that are political and ideological. We, of course, are not.
So Paxton gets his way in the SCOTX even if he loses in the lower courts (as happened in the 2020 pandemic voting rights cases). The specific legal arguments are secondary because the Texas Supreme Court is the state court of last resort and gets to say what the law is, period, whether it makes sense or otherwise. The purpose of what passes for jurisprudence is to provide the veneer of legitimacy for vindicating the interest of the GOP-controlled State. And a legal argument or position can no longer be frivolous once the SCOTX embraces it in a new precedent created to meet the exigencies of novel circumstances.
The same goes in reverse for those out of favor (i.e., not one of us). An amicus curiae brief by attorneys for the ACLU or NAACP triggers the cognitive equivalent of a collective knee-jerk reaction in chambers, and an imperative to rule against their position and the party they support (or represent).