Anatomy of a Judicial Election: A Report from Texas
I have written elsewhere (here, here, and here) about the importance of sound state courts and the deleterious consequences when judges depart from the rule of law to obtain desired results. I practiced law in California for 30 years, navigating the often-perilous straits of judicial decisions issued by both California’s quixotic state courts and the even-more capricious Ninth Circuit, and in the process developed keen antennae for the indicia of an activist judge. Unprincipled judges exist at every level (state and federal), no matter how they are selected — appointed, elected, or so-called “merit selection.” One activist judge on an appellate court is a nuisance, but the risk is that the result-orientation — if not corrected — will “infect” other judges, compromising the integrity of the court in question. In Texas, where all judges appear on the ballot in partisan elections, incumbent Texas Supreme Court justice Debra Lehrmann (R., Place 3) is facing a primary challenge from Houston-based First Court of Appeals justice Michael Massengale, who is also a Republican. (Two other Republican incumbents on the ballot in 2016 drew no opponents.) What is going on?
It is telling that the PAC associated with Texans for Lawsuit Reform, a nonpartisan group that advocates civil justice reform, endorsed Lehrmann when she ran in 2010, but has endorsed Massengale in the upcoming March 2016 election. In order to figure out why, I looked into Lehrmann’s record on the Texas Supreme Court and read some of her decisions. It turns out that since 2010 Lehrmann has dissented more often — over 40 times — than any other member of the Court (all of whom are Republicans). Many of her dissents were in cases applying the landmark Texas Medical Liability Act (TMLA), a comprehensive-reform statute passed by the legislature in 2003 (with the support of TLR) in response to a medical-malpractice crisis that jeopardized the availability of health care in Texas. Lehrmann has consistently — even doggedly — advanced positions that would restrict the application of TMLA by, for example, allowing the assertion of claims that are time-barred under the plain terms of TMLA.
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