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Judging Tommy

So now that Team DeLay has gotten its wish to boot Judge Bob Perkins from the Hammer’s money laundering trial, who else is there that can take over?

DeLay’s attorneys, Dick DeGuerin and Richard Keeton of Houston, argued that their effort was not just a matter of trying to get a Democratic judge removed from hearing the case of a Republican officeholder. They said it was a matter of removing a judge whose contributions showed him to be a “staunch Democrat” presiding at the trial of the nation’s “most partisan Republican.”


DeGuerin said Perkins made other donations to people or groups who have opposed DeLay, particularly in regard to the Legislature’s 2003 fight over congressional redistricting.

DeGuerin noted Perkins had made three $100 donations to state Sen. Gonzalo Barrientos, D-Austin, in 2002 and 2005. He said Barrientos was a leader in the Democratic senators’ 2003 fight against DeLay and fled with them to Albuquerque, N.M., to halt Senate debate on congressional redistricting.

He also noted that Perkins gave $100 to state Rep. Patrick Rose, D-Austin in 2004. In 2002, Rose defeated state Rep. Rick Green, R-Dripping Springs, who is named in the indictment against DeLay as having received illegal money from TRMPAC.

Perkins made more political donations in the past five years than any Travis County judge except two: Judge Brenda Kennedy contributed $6,345 and Judge Wilford Flowers $5,560.

Perkins and Flowers were the only Travis County judges to make federal campaign contributions, and Perkins was the only one to give money to the Democratic National Committee and DeGuerin said those groups ran fund-raising campaigns using DeLay as a “whipping boy.”


DeGuerin also noted that Perkins’ donations at the state and local level outpaced most other Travis County judges.

Perkins gave $3,005 in state donations, including money to the Texas Democratic Party and the Travis County Democratic Party. Both have used attacks on DeLay to raise money.

Almost all of Kennedy’s donations were to the Travis County Democratic Party, as were most of Flowers’ local donations. Judge Mike Lynch donated $1,700 to local Democratic groups. And Judge Julie Kocurek, the only Republican judge in Travis County, made four donations totalling $625 to local GOP organizations.

Travis County Democratic Judge Jon Wisser, a Democrat, made no political donations.

So, is it safe for me to presume that Judge Wisser would be acceptable to everyone? If the issue is who gives what to whom, he’d seem to be the perfect choice.

Let’s be clear about one thing: Making support for an opponent of the 2003 redistricting a litmus test, as DeGuerin implies with his statement about Sen. Barrientos, is an argument that should be rejected outright. If you were a Democrat in Texas in 2003 not named Ron Wilson, you opposed redistricting. Since that was DeLay’s baby all the way, that meant you opposed DeLay. By the same token, any Republican judge who gave money to a fellow partisan that year could be said to be a supporter of DeLay. If we’re going to go down that road, we may as well move this trial to the World Court in the Hague right now and get it over with, because there won’t be anyone left here who can preside.

Which leads to the question that some people are asking if maybe the whole partisan election of judges thing is a bad idea to begin with.

“I think the DeLay case is drawing attention to the over-politicization of the system,” [former Texas Supreme Court Chief Justice John] Hill said Tuesday after testifying for DeLay’s successful motion to remove state District Judge Bob Perkins from his case.


Historically, most of the criticism of the Texas election system has revolved around the Texas Supreme Court, which hears only civil cases. Each election cycle, Supreme Court justices and candidates receive thousands of dollars from special-interest groups — businesses, insurance companies and plaintiffs’ lawyers — with millions of dollars at stake in cases before the high court.

On two occasions within the past 18 years, CBS’ 60 Minutes has aired programs questioning whether justice is for sale in Texas.

Bills to change the system are filed during each legislative session, only to die.

Rarely do partisan judicial elections become an issue in criminal cases in Texas because rarely is a high-ranking political figure, such as DeLay, on trial in a criminal courtroom.


One proposal for changing the judicial selection system in Texas would have judges appointed by the governor. Judges then would be required to run in periodic, nonpartisan retention elections but wouldn’t have ballot opponents.

Voters would decide whether to keep a judge in office or unseat him. Unseated judges would be replaced by other gubernatorial appointees.

Hill, who has been campaigning for judicial reform since stepping down from the Texas Supreme Court in 1988, supports that proposal and said he will again urge the Legislature in 2007 to enact it, at least for appellate judges and district judges in large cities where candidates are lesser known.

I don’t much care for the current system of partisan judicial elections, but I don’t like Justice Hill’s solution any better. For one thing, that’s a huge increase in power to the Governor’s office, and I think we all ought to think long and hard about making any such change. For another, I doubt that any judge would ever lose a retention election. It’s hard enough to unseat a judge when he or she has a live opponent out there campaigning for that spot on the bench. And who would fund the opposition to a judge’s retention if it came to that? Political parties and special interest money. Tell me again how that’s supposed to help?

If you want to make a change to eliminate or at least minimize this kind of potential conflict of interest, I say the answer is greater restrictions on campaign contributions to and by judges, plus more stringent rules on when a judge’s giving or receiving requires recusal. Having such rules in place would have made the Perkins situation a lot simpler – either it wouldn’t have been an issue because he wouldn’t have given money to anyone, or it would have been automatic for him to recuse himself. I still don’t think that Perkins’ relatively modest contribution history is remarkable enough to make his sidelining obvious, let alone mandatory, but as I seem to be in the minority here I’d like to at least see more consistent guidelines come out of it so the next time we have this kind of situation it can be resolved with less shouting. This is the way I’d do it if it were up to me.

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  1. I’m gonna disagree with you that no judge will ever lose a retention election. Eileen O’Neill would have lost retention in a heartbeat; she lost to Devine anyway but would have gotten plowed hard in a retention election. You’d also lose judges who’d get booted for not deciding to hang folks like Andrea Yates high enough.

    Partisan elections suck but the alternatives also suck. There is no good solution.

  2. pj says:

    Delaware has the best state judges in the country, hands down, and everybody in the state thinks the system works well. It has four key elements.

    1. A nonpartisan committee of lawyers selects three candidates for each judicial opening.

    2. The governor picks one of the three candidates.

    3. The judge serves for 12 years, and can be reappointed, provided he is selected by the committee (which doesn’t always happen).

    4. Here’s the really important part — the membership of each court, including the supreme court, must be split by political party, so that no party holds more than a one judge advantage on any court.

    As a result, a republican governor must often pick a democrat, or vice versa. The cross party picks tend to be the best ones, because they are entirely on merit and not on campaign fundraising.

    It is a starkly results oriented system, and third parties get no real shot at representation, but it works very, very well.