New York Times - July 9, 2000
Bush's Choices For Court Seen As Moderates By JIM YARDLEY
AUSTIN, Tex., July 7 - Earlier this year, the Texas Supreme Court stunned social conservatives throughout the state by issuing a 6-to-3 ruling that allowed a 17-year-old high school senior to have an abortion without telling her parents.
"It was shocking," said Joe Kral, the legislative director for the Texas Right to Life Committee.
It was, after all, appointees of Gov. George W. Bush who took the lead on the issue. And it was the governor himself who had pushed into law the Texas Parental Notification Act, which required minors to inform their parents before seeking an abortion.
In recent weeks, particularly after the United States Supreme Court's 5-to-4 ruling that rejected a Nebraska law prohibiting doctors from performing a procedure that opponents call partial-birth abortion, the issue of judicial appointments has percolated into the presidential race. Vice President Al Gore, the presumptive Democratic nominee, seized on the close vote to warn that Mr. Bush, if elected, would appoint conservative Supreme Court justices hostile to abortion rights.
But a look at Mr. Bush's record in Texas shows that he has appointed justices who have had a moderating influence on the Texas Supreme Court, often regarded as among the most conservative and pro-business in the country. He has appointed four of the court's nine justices and has been a political patron for a fifth, Harriet O'Neill, who wrote the majority opinion in the parental notification case.
Even those who do not support Mr. Bush say that while his appointees are regarded as conservative and business-oriented, they are not fiercely ideological.
What insight, if any, Mr. Bush's appointments in Texas offer into what he might do in Washington is debatable. The scrutiny and pressure surrounding a nomination to the United States Supreme Court far exceed those accompanying an appointment to the Texas court. Mr. Bush, who opposes abortion, has offered only vague descriptions of his model justices, though, tellingly, he has cited two of the leading conservatives on the Supreme Court, Antonin Scalia and Clarence Thomas, for praise.
On the campaign trail, Mr. Bush has said he wants justices who strictly interpret the Constitution. He also has promised not to apply any ideological litmus tests, including one on abortion, even though many of the social conservatives who support him are eager to overturn Roe v. Wade.
Clay Johnson, a top aide to Mr. Bush, said he believed the selection process for justices would undoubtedly be different in a Bush presidential administration than it has been in Texas. "But I think he would be looking as he did at the state level for people who are interpreters of the law as opposed to makers of the law," Mr. Johnson said.
In Texas, Supreme Court justices are elected statewide to six-year terms, but early retirements allowed Mr. Bush to reshape the court. And if anything, the Bush appointees seem in keeping with his campaign theme of "Big Tent Republicanism."
"I think the people he picked were sort of moderate conservatives," said Anthony Champagne, a political science scientist professor at the University of Texas at Dallas who follows the court. "Like he is."
Mr. Bush's first appointee, James A. Baker, was a state appellate judge and a longtime political ally of the Bush family. (He is no relation to the former United States secretary of state.) His second, Greg Abbott, was a highly regarded state judge in Houston who has been paralyzed since an accident 16 years ago. His third, Deborah G. Hankinson, was a teacher-turned-defense lawyer. And his fourth, Alberto R. Gonzales, is one of Mr. Bush's most visible Hispanic allies, having served as the governor's general counsel and as Texas secretary of state.
The governor appointed Justice O'Neill to a lower court in 1995 and in 1998 she won a seat on the high court with his blessing. All of Mr. Bush's appointees are Republicans and all have since been elected except Mr. Gonzales, who is expected to be elected easily in November.
"They have uniformly been chosen for quality," said Bill Powers, dean of the law school at the University of Texas. "There has not been a litmus test. They are sort of middle of the road on the court."
In separate interviews this week, Justice Hankinson, Justice Gonzales and Justice Abbott all described a similar interview process with Mr. Bush, who is not a lawyer, and a few aides. None were asked about specific issues like abortion. (In fact, until the parental notification opinion, the court had never had to directly address abortion.) Instead, they said, the governor asked open-ended questions about judicial philosophy to determine how they might view their roles as justices.
Before the interview, Justice Abbott barely knew the governor, having met him at a few Republican Party functions; Justice Hankinson had never met him. She said he seemed interested in her experience as a special education elementary school teacher and her subsequent career change to law.
"I told him I thought it was very, very critical that judges not bring an agenda to the bench," said Justice Hankinson, whom Mr. Bush appointed as an appellate judge in 1996, then to the State Supreme Court a year later.
Debbie D. Branson, president of the Texas Trial Lawyers Association, a group that has been critical of the court and Mr. Bush over the years, said the court is "still not where we'd like them to be" on consumer issues and other damage claims. But Ms. Branson agreed that the Bush appointees had started the process of moving the court back to the center.
The recent history of the Texas Supreme Court is one of stark swings in ideology. The court hears only civil matters because the Court of Criminal Appeals, whose members are also elected, is the state's highest criminal court. For decades the Supreme Court was considered resolutely pro-business and pro-defendant. But in the early 1980's many of the state's wealthiest plaintiffs' lawyers helped elect an all-Democratic, lawsuit-friendly court that began upholding enormous jury verdicts against corporate and medical defendants.
Business interests and lobbyists for the medical field fought back and began electing conservative justices, most notably Justice Nathan L. Hecht. For much of the 1990's, Justice Hecht led a conservative counterrevolution that shifted favor back to defendants and business. The scales of justice had shifted: while studies showed that plaintiffs won more than 60 percent of cases in the 1980's, the defendants were winning 83 percent by the 1995-96 court term.
"The court was becoming increasingly viewed as conservative almost to a fault," said Kim Ross, the chief lobbyist for the Texas Medical Association, who had helped elect conservative judges in the late 1980's. "There were complaints of unfairness."
Mr. Bush took office in January 1995, and his first opportunity to influence the court came that summer when Justice Bob Gammage, a Democrat, announced he would retire. Mr. Gammage had attacked the state's system of electing judges as corrupt and blamed the court for favoring big business, particularly insurance companies. But in an interview this week he called Mr. Bush's appointees fair and nonideological even as he pointed out that the law is not the governor's expertise.
"He doesn't know what judges do," Mr. Gammage said. "He doesn't think in terms of courts. He doesn't think in terms of lawyers. He thinks in terms of business."
By the Supreme Court's 1998-99 term, the liberal judicial watchdog group Court Watch found that Mr. Bush's appointees were "eliminating the excesses of the G.O.P. old guard." A Court Watch study determined that the court was showing more sympathy for plaintiffs.
Chief Justice Thomas R. Phillips, a leading conservative who took office in 1988, acknowledged that in recent years "there's been sort of a middle course," but he said it was in keeping with national trends. To some degree, he noted, the bitter ideological fights over tort law had been fought before the Bush appointees arrived.
Until the parental notification issue arose, the Texas Supreme Court rarely ruled on divisive social issues. The law, which took effect on Jan. 1, included a "judicial bypass" provision, allowing minors to have an abortion without notifying their parents if they could demonstrate to a judge that they were "mature and sufficiently well informed."
The first such case, known as Jane Doe 1, came in March when the Supreme Court overruled a trial court, which had held that the 17-year-old had not meet the standard for a judicial bypass. The majority Supreme Court opinion, which was released on June 22, concluded that a strict reading of the notification law showed a fairly low burden of proof for a teenager seeking a judicial bypass -- one that the opinion concluded Jane Doe 1 had met, allowing her to have the abortion.
"We have put aside our personal viewpoints and endeavored to do our job as judges -- that is, to interpret and apply the Legislature's will as it has been expressed in the statute," Justice O'Neill wrote for the majority, which included Justice Baker, Justice Hankinson, Justice Gonzales and Justice Craig Enoch, a Republican elected in 1992. Chief Justice Philips voted with the majority but did not concur with all the points in the opinion. Of Mr. Bush's appointees, only Justice Abbott dissented.
The sharpest dissent came from Justice Hecht, the court's leading conservative, who accused the majority of not of putting aside personal viewpoints, but acting on them. "The rationale for the court's ruling, I think, is that the court does not regard the decision to have an abortion as being a very important one," he wrote.
The bypass petitions are expedited, and five, including Jane Doe 1, have reached the court and found different results. The justices have granted two bypasses and rejected two. The fifth case was withdrawn.
Abortion opponents have not hidden their disappointment. Religious conservatives at the State Republican Party convention in June adopted a platform plank that called for the defeat of judges who approve judicial bypasses.
"They've made it way too easy for doctors to perform secret abortions on minors without their parents being told," said Joe Pojman, director of Greater Austin Right to Life.
Yet Mr. Pojman and Mr. Kral agree that the court's opinion has not shaken their support of Mr. Bush. "If Bush does what he says and picks justices who stick to the original intent of the Constitution, we'll be in great shape," Mr. Pojman said.
In a statement on March 22, after the Jane Doe 1 case became public, Linda Edwards, a spokeswoman for the governor's office, chose not to criticize the court, but neither did she embrace its ruling.
"Governor Bush worked hard for the passage of a law that is intended to reduce the number of abortions in Texas and involve parents in this major decision by their minor daughters," Ms. Edwards said. "If the law needs to be strengthened or changed for that intent to be carried our, then Governor Bush would support that."