Open mouth. Insert foot.

Jimmy Blacklock was appointed by Gov. Greg Abbott to fill the vacant Supreme Court seat of Don Willett who was appointed by President Trump to sit on the 5th U.S. Circuit Court of Appeals. Mr. Blacklock's immediate prior job was as general counsel to Gov. Abbott.

Since Judge Willett's term expired in 2018, Judge Blacklock must stand as a candidate this November. His website is adorned with partisanship and highlights his stance as a wingnut. And now Gov. Abbott is going around telling folks that he knows how Judge Blacklock will rule on abortion-related issues because of his anti-abortion positions.

We like to pretend that our judges sit on the bench and make decisions based upon the law and the facts presented to them without regard for politics. That, of course, is a fiction (in large measure). Gov. Abbott's remarks cast aside that shroud of impartiality and case severe doubt on Judge Blacklock's ability to sit as an impartial arbiter.

You might expect the governor to know better than to tout his appointee's positions on issues that may come before the court given that Mr. Abbott once sat on the State Supreme Court. But, fear not, the governor has a long track record of being a hack who carries the water for insurance companies, the petrochemical industry and large corporations.

And, lest you forget, Gov. Abbott fought tooth and nail to defend the state's voter ID law which imposed some of the most stringent requirements for voting with the intent to restrict the ability of the poor, minorities and the elderly to vote.

Taking away the voice of the people

Last week Wallace Jefferson, the first black Chief Justice of the Texas Supreme Court, announced that he was stepping down from the Court on October 1, 2013. His stated reason is financial. Judge Jefferson has one child in college and two others in high school and is making a mere $152,000 a year (but a pay raise authorized by the legislature would make that $170,000).

I'm quite certain that he will be stepping down from the bench and into a corner office at either a white shoe or boutique firm in San Antonio without missing a step. I'm interested to see just how quickly he moves into that office.

Once he leaves the bench, the fair-haired one, Gov. Rick Perry, will have yet another opportunity to appoint a conservative jurist to the bench.

Now, for those of y'all who think that partisan elections are a bad way to pick judges, you should love the Texas Supreme Court. It is, for the most part, made up of judges who were appointed by Gov. Perry who periodically run in retention elections to determine whether they get to keep their seat.

Chief Justice Jefferson was appointed to the Court in 2001, he was then appointed Chief Justice in 2004.

Justices Phil Johnson and Don Willett were appointed to the Court in 2005.

Justice Eva Guzman was appointed in 2009. This followed her appointment to the 14th Court of Appeals in 2001 which followed her appointment to a state district court.

Justice Debra Lehrmann was appointed to the Court in 2010.

Justice Jeffrey Boyd was appointed to the Court in 2012. Interestingly enough, prior to that appointment he served as Gov. Perry's chief of staff. Prior to that he served as the governor's general counsel.

Of the nine judges on the Texas Supreme Court, only Nathan Hecht, Paul Green and John Devine were ever elected to their seats. Thus, the overwhelming majority of the court (which presides over civil matters) is answerable to no one. As they are all Republicans, so long as the GOP controls statewide races in Texas, their seats will remain safe. Aside from lawyers who practice before the court, the only other folks interested in the Supreme Court are business interests who have an interest in keeping their buddies on the bench fed.

So, before you start waving the banner to get rid of partisan judicial elections in Texas, just ask yourself if you really want a governor to have the power to appoint every judge across the state.

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

Who needs a sworn report anyway?

Score one for the Department of Public Safety.

Whenever a motorist is arrested for driving while intoxicated in Texas, the arresting officer must file a sworn report with the DPS referred to as a DIC-23. In that form the officer swears to the information regarding the reason for the stop and probable cause to arrest the motorist.

In Texas there are two ways in which the DPS can suspend the driver's license of a motorist arrested for DWI. Refusing a request for a breath test can net a first-time offender a six-month suspension. Blowing over the legal limit of .08 can get a first-timer a 90-day suspension.

Due to the way in which the laws were written regarding these administrative license suspensions, the officer was required to issue a sworn report on a failure case but not on a refusal case.

Back in 2007, Stephen Caruana was stopped and arrested for driving while intoxicated. Mr. Caruana submitted to a breath test and blew a .016 and a .015, both in excess of the legal limit. As a result, the DPS moved to suspend his driver's license for 90 days.

At a hearing to contest the suspension, the arresting officer testified about the stop and admitted that he had not sworn to his report. Mr. Caruana moved to exclude the officer's report from evidence. His motion was denied and the administrative law judge ordered his license suspended. Mr. Caruana appealed the suspension to the county court which reversed the decision of the administrative law judge. The DPS then appealed that decision to the Austin Court of Appeals which upheld the county court's ruling. The DPS then appealed to the Texas Supreme Court.

In Texas Department of Public Safety v. Stephen Caruana, No. 10-0321 (Tex. 2012), the Supreme Court then determined that there was no need to require an officer to swear to his report because if he lied on it he would be subject to prosecution for making a false statement in a government record. It would be too obvious, of course, to point out that fear of prosecution has never deterred a police officer from submitting an offense report that is more akin to a work of fiction.

The judges on the Supreme Court took a twisted path to come to the conclusion that just because the statute required an officer to submit a sworn report, that didn't make an unsworn report inadmissible. We also have the spectacle of a court made up of judges who supposedly practice judicial restraint invalidating part of a statute in order to reach their chosen conclusion.

Now, there was a big problem in Mr. Caruana's case that set the stage for the Supremes to decide the legislature didn't mean what it said. At the license suspension hearing, the arresting officer testified as to what he observed and why he arrested Mr. Caruana. The officer's report wasn't necessary as the administrative law judge had the officer's sworn testimony as to the events of that evening. In other words, the report (sworn or unsworn) was irrelevant. That, in turn, gave those members of the Court who wanted to uphold the suspension little choice other than to make the ruling they did. Had this been a case in which no testimony was offered (a so-called "paper case"), I think the outcome would have been different.

But, now, thanks to the Supreme Court, a process that was already stacked to benefit the DPS, has become even more so.

I'm taking my ball and going home

After a referendum in which the State Bar's proposed disciplinary rules changes were defeated by about an 4-1 margin across the board, those behind the proposed changes still don't get the message that Texas lawyers made abundantly clear over the past month.

Wallace B. Jefferson, the Chief Justice of the Texas Supreme Court is so put out that he issued the following statement:

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

Much like the intellectually bankrupt leaders of the State Bar, the Chief Justice is unable to give a cogent answer as to why the rules need to be changed. Same theme, second verse -- if you can't come up with a better reason than how long it's been since the rules were last changed, then you don't have a good reason. The Bill of Rights seems to have worked (more or less) pretty well and the first ten amendments were written some 220 years ago.

Here's a hint for you, Mr. Jefferson, if you want a rule prohibiting sex between lawyers and their clients -- put it out for adoption on its own. I guarantee that had that rule change been put to a vote on its own, it would have passed overwhelmingly.

As to Mr. Jefferson's wanting to protect "our justice system," might I remind him that the Supreme Court's primary duty is to determine who gets whose money. I'm sure that's important to insurance companies and municipalities, but it has very little consequence on our citizens who find themselves the subject of a criminal prosecution.

Finally, the leadership of the State Bar wastes no opportunity to tell us we need to preserve self-governance in the profession. Well, Mr. Tottenham, if the State Bar is our form of self-governance, why is the Chief Justice of the Texas Supreme Court saying the Court will do what it wants to do, regardless of how we feel about it?

No experience needed

Earlier this week State District Judge Susan Criss from down in Galveston posted a comment on her Facebook page that 40 of the 111 Chief Justices of the U.S. Supreme Court had no experience as judges. Then Rick Casey of the The Houston Chronicle wrote about the lack of judicial experience for judges on the two highest courts in the state. According to Mr. Casey, five of the judges on the Texas Court of Criminal Appeals had no judicial experience prior to being elected (I don't know if using Judge Killer as an example is a good idea, however). He also pointed out that the Chief Justice of the Texas Supreme Court, Wallace Jefferson never wore a judge's robe before he was appointed to the court.

Senate Republicans are aiming to make an issue of President Obama's selection to fill the seat of Justice John Paul Stevens having no prior judicial experience. Elena Kragan is the Solicitor General for the United States and argues before the Supreme Court on issues involving the federal government. Funny that Republicans didn't have a problem with President George W. Bush's selection of Harriet Miers, former White House Counsel, to fill a seat on the bench. But, then, consistency has never been a priority of the two major parties.

Neither former Chief Justice Earl Warren nor Chief Justice William Rehnquist, appointed by Presidents Eisenhower and Nixon respectively, had any prior judicial experience before taking their seats on the high court.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. -- U.S. Constitution, Art. III, Sec. 1

The U.S. Supreme Court was created by Article III of the United States Constitution. Interestingly enough, there is no requirement that a nominee for the Court even be a lawyer.

On contracts, torts and the death penalty

On the way down to the island this morning I heard a radio ad for Judge Rose Vela, a republican candidate for a seat on the Texas Supreme Court. She was proud of the fact that she had presided over death penalty cases on the trial bench and that this somehow qualifies her to sit on the state's highest civil appellate court. I'm not certain how imposing the death penalty qualifies one to decide what the language in a contract means whether someone owed someone else a duty or if a person is a responsible third party.

If she enjoys green-lighting state-sponsored murder, perhaps Judge Vela should go to the Court of Criminal Appeals where she can ponder issues of due process and constitutional rights before uttering those two famous words -- "harmless error."