Why resign tomorrow when you can do it today?

News item:

After 15 years as a member of the Texas Supreme Court, Republican Justice Paul W. Green said he will retire in August — almost two and a half years before his term was set to end.

“I’m grateful to the people of Texas for electing me to the court three times, and it’s been a great honor and privilege to serve,” Green said in an interview. “It’s been a bittersweet kind of day.”

The San Antonio native is the court’s second in seniority, and Gov. Greg Abbott will choose his successor. All nine members are Republican and serve staggered six-year terms.

Green said that he is retiring early because it feels like the right time and to spend more time with his family.

“Well, I’m 68 years old, and there’s a lot of things I want to do still,” he said.

Green was reelected in 2016, and his term ends December 31, 2022.

There’s nothing unusual about this. Quite a few of our Supreme Court and Court of Criminal Appeals justices were originally appointed, following the resignation of a sitting Justice who still had time left in their term. But timing is everything, and that led the Texas Democratic Party to make an observation:

Today, Texas Supreme Court Justice Paul Green announced his plan to retire from the bench on August 31.

If Green follows through and resigns after August 24, his resignation will fail to trigger a special election, and failed Texas Republican Governor Greg Abbott will be able to choose his successor, who will be locked into a term ending in 2022.

However, if Green resigns immediately, it will allow the people of Texas to vote in a special election for the next justice on the Texas Supreme Court. There is an election coming up in November. With four other Supreme Court seats up in November, the people of Texas should be able to vote on Green’s successor and the entire composition of the court at that time.

The benefit to waiting till after August 24 is clear. Whoever gets appointed will have two full years as an incumbent, which certainly helps with fundraising, and will get to say “Re-elect” on their campaign literature in 2022. Also, if Justice Green were to resign now and open up his seat on the bench this November, that would put five of the nine seats on the ballot, the three that normally would come up plus Jane Bland, appointed earlier to fill an unexpired term for Place 6. This may be a remote concern, but having five seats up for election at once allows for the possibility that partisan control could flip, from 9-0 Republican to 5-4 Democratic. Scoff if you want, but that’s exactly what happened on several appeals courts in 2018, and with the state of the polls right now, it’s hardly out of the question.

You may say, partisan judicial elections are bad, we shouldn’t have the composition of a court flip because of a Presidential race, we need to move towards a merit-appointment-based system for picking judges, blah blah blah. We have this discussion every time Democrats win judicial elections in Texas. All I’m saying is that it Justice Green wants to call it a career, there’s no reason why he couldn’t step down on July 31, or August 15, instead of August 31. His choice of date is as much about partisan considerations as anything, and we should be honest about that.

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5 Responses to Why resign tomorrow when you can do it today?

  1. Mainstream says:

    another blog reports 6 of the 9 current members of the Texas Supreme Court started by appointment by the Governor, which sounds correct

  2. Lobo says:

    RE: “His choice of date is as much about partisan considerations as anything, and we should be honest about that.”

    Comment: It’s “natural” for them to act that way. It’s always the others who are political. GOP judges are paragons of neutrality and evenhandedness … utterly pure in motive and committed to the law. How dare you suggest otherwise?

    And the nine supremes only “find” the law, they do not make it. That would be a no-no. It’s the evil liberals who are the activists that would take the law into their own hands and legislate from the bench.

  3. Bill Daniels says:


    Ask Mr. Obergefel about legislating from the bench.

    Full disclosure: I support gay marriage.

  4. Joshua ben bullard says:

    Correction – illegal to print ” reelect” on campaign material when the office holder occupies by appointment only , the material can post ” keep” but not ” reelect ” – that would be a jailable offense.

  5. Lobo says:

    Re: Elect vs. ”reelect” (Joshua)

    Interesting. Wasn’t aware of this particular election crime. Do you have a cite to the Election Code?

    Note however, that the term re-election is used rather casually and general parlance. Lexical Stickler would urge journalists and editors to be more careful. Literally speaking, you cannot get re-elected if you have yet been elected (only selected/appointed) in the first place.

    Further complication: Some incumbents are election rejects from 2018, but were previously elected to their respective seats (two from Houston who often have to “not participate” in cases coming to the SCOTX from the 1st and 14th COA, and that’s many).

    Re: Obergefell [Double-F] … High courts make policy one way or the other. After all, their decisions become precedent (or let stand lower court rulings, or prior precedents). So, in my view, “legislating from the bench” is just a way of expressing disagreement with a particular decision, in an insulting kind of manner, though not as bad as denouncing a judge as rogue and accusing him of engaging in drive-by analysis and torching of strawmen. That took the prudence out of the Fifth’s purported jurisprudence and replaced it with ad-hominem diatribe, raising the question: How low will strict constructionists (not) go?

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