Friday, March 27, 2015

A good pick for the U.S. Supreme Court | Last Word

I generally avoid offering assistance to U.S. presidents.

Thousands of reporters, pundits and politicians in Washington perform that patriotic function.

But there is one area in which President Obama may need help.

The issue concerns the possibility that an opening may occur on the U.S. Supreme Court before he leaves office. 

There is no guarantee, of course. 

Liberal Ruth Bader Ginsburg turned 82 last week and has had cancer.

But she remains vigorous and insists she has no intention of stepping down soon.

Conservative Antonin Scalia turned 79 two weeks ago, but also appears full of vim and vinegar.

Frequent swing-voter Anthony Kennedy is 78.

So there are possibilities.

But the conventional wisdom in Washington is that the new Republican-controlled Senate would not confirm any Obama Supreme Court nominee.

But the Washington conventional wisdom is not terribly well informed about the lay of the land outside Washington.

Yet, deep-red Texas may have the one person whom Obama could sell to the current Senate: former Texas Supreme Court Justice Wallace Jefferson.

Jefferson grew up in San Antonio and built a stellar career as an attorney specializing in appeals.

He now practices law in Austin after resigning from the Supreme Court in 2013.

Consider the sales pitch aimed at Republicans:

His pedigree: He was appointed to the Texas Supreme Court by Gov. Rick Perry in 2001.

Perry elevated Jefferson to chief justice in 2004.

His historic ties to the judiciary: His great grandparents were slaves owned by a judge.

That’s a terrific personal story.

Jefferson can be presented as a one-man argument for American exceptionalism, racial progress and upward mobility.

Finally, Republicans should hesitate to wait.

With the economy apparently on the rise, it is hardly inconceivable that a Democrat could win the presidency next year.

What’s more, the Senate could return to Democratic control.

Ten Democrats are up for re-election, and 24 Republicans.

Two Democratic seats are considered to be in competitive states, while seven Republican seats are.

So Republicans could easily do worse than Jefferson, who often ruled for insurance companies and big businesses over plaintiffs. 

And so why would Obama nominate him?

If he were to talk to Jefferson, he might well find that the chief justice so often ruled for the big companies over the little guys because that’s the tilt of the law in Texas.

Jefferson is, as a judge should be, committed to following the law.

But he has also shown considerable concern for the little guy.

He was recently honored by the liberal Austin branch of the Anti-Defamation League for his work to provide funding for lawyers for poor folks.

And then there is, briefly, a story I’ve told before.

Back in 2005 I noticed a brief item in the Washington Post saying that the Conference of Chief Justices – heads of federal and state appeals courts in all 50 states – had passed a resolution opposing a congressional push to cut federal oversight of death penalty convictions.

State judges were saying they wanted to be fully reviewed by federal courts.

It was unanimous, except for Texas.

I assumed that Sharon Keller, chief judge of the Texas Court of Criminal Appeals, our separate supreme court for criminal matters, was the one who dissented.

But it was Jefferson’s turn to represent Texas at that year’s conference.

He explained to me that he didn’t dissent. He abstained.

As a civil appeals judge, he wasn’t familiar with criminal law.

He received the ballot item the night before the vote, and needed to study up.

Shortly after returning home, he filed his vote, making it unanimous.

That, to me, is a good judge.

His fellow chiefs apparently agreed.

They later elected him head of the conference.

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