Friday, September 21, 2012

Supreme Court good news | Casey's Last Word

I, for one, am very glad that Governor Rick Perry is not a Supreme Court justice, either the nation’s or the state’s.

The U.S. Supreme Court and state supreme courts have long recognized the importance of the American concept of separation of church and state.

Not Rick Perry.

This week he complained to a conservative Christian group about "this separation of church and state which has been driven by the secularists."

He also laid blame on Satan.

But if Perry isn’t himself a justice, he has had extraordinary influence over the make-up of the Texas Supreme Court.

Fully six of the current nine members of the court were appointed by Perry to fill unexpired terms.

Now he gets to appoint another to replace Justice Dale Wainwright, one of the three who was elected to the high court without previously being appointed by Perry.

Wainwright announced this week that he is resigning after 10 years on the court to join a law firm, and it is too late to place candidates on the November ballot.

But here’s the good news.

Perry has actually done a pretty good job when it comes to Supreme Court appointments.

Sure, the all-Republican court is as conservative as you would expect, generally favoring big business and insurance companies over consumers and employees, and has occasionally engaged in outright judicial activism.

But Perry’s appointees have been well-credentialed and none appears to be heavily driven by ideology.

He started out particularly well with his first appointee, San Antonio’s Wallace Jefferson.

Perry appointed Jefferson to the high court shortly after taking office in 2001, and elevated him to chief justice in 2004.

Let me tell you a story about Jefferson.

Back in 2005 Republicans in Congress were pushing a bill that would limit the ability of federal courts to review the decisions of state courts in both capital and non-capital crimes.

More technically speaking, the bill would limit defendant’s habeas corpus rights on appeal.

An organization called the Conference of Chief Justices, made up of the chief justices of the high courts of the 50 states and of federal appeals courts, passed a resolution opposing the bill.

This was striking because the state chief justices were telling Congress they wanted to be second-guessed.

The resolution passed unanimously except, in the words of the Washington Post, for “the chief justice of death-happy Texas.”

Texas is one of only two states with two separate high courts, one for criminal and one for civil matters.

So I assumed that the dissent came from Jefferson’s criminal court counterpart, Sharon Keller, presiding judge of the Texas Court of Criminal Appeals.

Keller ran for office describing herself as “pro-prosecution” and proved the pledge accurate.

She once responded to the DNA finding that the semen found on a rape/murder victim did not belong to the man convicted of the crime by pronouncing that “he might have worn a condom.”

(Further evidence proved clearly that the man had been wrongfully convicted.)

But it turned out that Keller wasn’t at the Chief Justice convention.

It was Jefferson.

So I called him to find out why he was the lone dissenter.

He said he wasn’t. He had abstained, not dissented.

He explained that he had never practiced criminal law nor did he deal with it on the Texas Supreme Court.

He received a copy of the resolution the day before the vote and didn’t feel qualified to take a position.

So he abstained and promised to submit his position after he had time to study the issue.

I asked if he felt he should cede the state’s vote to Judge Keller, since it was a matter affecting her court.

“No, I have an obligation to decide since I have the vote,” he said. “I certainly have consulted with Judge Keller. Her position and mine may be at odds.”

Sure enough, Jefferson soon notified the conference of his vote.

After what can only be called judicious consideration, he made it unanimous.

Five years later the chief justices elected Jefferson president of their conference.

Let’s hope Perry’s next Supreme Court appointment is as distinguished as his first.

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