With a new vacancy on the Texas Supreme Court, attention turns to diversity concerns

Texas Tribune News

The Justices of the Texas Supreme Court hear the Texas Department of Criminal Justice v. Maurie Levin, et al. case on Jan. 23, 2019.
The Justices of the Texas Supreme Court hear the Texas Department of Criminal Justice v. Maurie Levin, et al. case on Jan. 23, 2019.
Emree Weaver / The Texas Tribune

The first and only all-woman Texas Supreme Court came about by accident.

The legal question was about as interesting as any — the El Paso-area land rights of a fraternal organization called Woodmen of the World — but all three male justices on the court in 1925 were members of that club, as were the prominent male attorneys then-Gov. Pat M. Neff considered as potential replacements. Ultimately, Neff settled on a novel path forward: For a single sitting, he appointed three women to the court.

The court is three times larger now, but it hasn’t had such a high proportion of women — or even a higher number of women — since. It wasn’t for six more decades that a woman was appointed to serve full-time on the court, and fewer than 10 women have served as full-time justices at all.

Currently, there are just two women on the state’s highest civil court, the same as the number of justices named Jeffrey B.

That makeup could shift, if marginally, after last week, when one of those Jeffs — Justice Jeff Brown — was confirmed as a federal district judge in Galveston. That will give Gov. Greg Abbott, himself a former judge on the high court, his third opportunity to appoint a judge on the state’s highest civil court. His first two picks were now-Justices Jimmy Blacklock and Brett Busby, both white men.

As attention nationwide turns increasingly to inclusivity and representation in the highest branches of government, the Texas Supreme Court has actually become less diverse over the last decade. Advocates and former judges are looking to this vacancy with hope that that will change; many in Texas’ legal circles were quietly surprised that Abbott didn’t choose a woman or a person of color for either of his appointments so far. Appointments are a powerful tool for addressing disparities in the court’s makeup and elevating diverse voices even in a field that remains largely white and male.

The high court is “not just a little unbalanced, it’s a lot unbalanced,” said former Texas Court of Criminal Appeals Judge Elsa Alcala, who until she left the court last year was the only Latina justice on the state’s highest court for criminal matters.

Deborah Hankinson, who was appointed to the court in 1997 — when three women served simultaneously — said representation has a tangible impact on outcomes, as the court rules on disputes like parental rights, plastic bag bans and same-sex marriage benefits.

“I remember instances where the men would weigh in on x, y, z and then it gets to one of us, and one of us would say, ‘Wow, what about this?’ And we would point something out, and the other two [women] would nod,” Hankinson recalled. “There were just some times that our specific life experiences informed and added something to the process that would not have been there had we not been there.”

Applications for vacancies on the Texas Supreme Court, obtained through open records requests, show that of just under 30 people, nearly all applicants for the posting are white. About a third are women, many of them former Republican appeals court justices who lost reelection bids last November as Democrats swept urban-area appeals courts.

Court watchers and competing applicants themselves praised several of those women as excellent picks.

“Those folks were overlooked, because it wasn’t important enough to the governor to bring diversity to the court,” said Alcala, a longtime Republican who recently announced she was leaving the party in response to the president’s rhetoric on race. Former Gov. Rick Perry appointed Alcala in 2011. “That that was not important enough to the governor should be concerning to us.”

“[Gov. George Bush] paid attention to it and Perry paid attention to it. And I don’t see that Abbott has paid attention to it,” she added.

History shows that appointments are the most effective way to bolster diversity on states’ high court benches.

Nationally, “supreme court elections have rarely been a path to the bench for people of color,” a new report from New York University’s Brennan Center for Justice found. Appointment has been “the principal selection method responsible for the increase in racial diversity in state supreme courts,” the report says.

Most women on the state’s two high courts were appointed before they were elected. No Hispanic justice has ever won election to the Texas Supreme Court without being appointed first; only one Hispanic judge, Michelle Slaughter, has been elected to its sister court, the Texas Court of Criminal Appeals, without an appointment first.

Texas judges face particular challenges in seeking re-election: They run in down-ballot, low-information races, but still must muster enough enthusiasm to win statewide. And because statewide elections in Texas have been captured by Republicans for two decades, candidates are effectively selected in the GOP primary, when the electorate is mostly white.

For Hispanic judges, that amounts to what experts call a “surname challenge”: With little other information, the overwhelmingly white electorate in Republican primaries leans toward the names that sound familiar, said Mike Baselice, a GOP pollster.

That effect can be ameliorated with the name recognition and increased fundraising power that accompanies backing from the governor — which operates almost like a “subsidy,” said Victoria DeFrancesco Soto, a professor at the University of Texas’ Lyndon B. Johnson School of Public Affairs.

Abbott’s office — which has often come under fire for appointing few diverse individuals — did not respond to questions for this story.

Court watchers also pointed to the need for geographic diversity on the bench. After Justice Phil Johnson resigned last year, most justices hail from big cities, and there is no one from West Texas.

“We just bring different experiences,” said former Justice David Medina, who served on the court until 2012, when he lost a Republican primary to Justice John Devine. “Whether you have a corporate background; whether or not you have an appellate background; black, brown, white, male or female — we all have different experiences and those experiences, I think, help when we’re deliberating a case.”

Of course, the challenges of finding diverse legal talent stretch outside the governor’s Capitol office. Among the state bar, the figures are similar: Men comprise nearly two-thirds of the state’s lawyers, and only one in five attorneys is a person of color. There are more Baylor Law School graduates practicing in Texas than there are black attorneys, a bar survey shows.

The two women sitting on the court praised their Abbott-appointed colleagues — while emphasizing the importance of diversity in the court’s decision-making.

In 2010, the year Justice Debra Lehrmann was appointed, the court included two women, two black justices and two Hispanic justices.

“I do think the diversity we had in the past is largely because of the appointment system,” Lehrmann said. “It’s good when the court reflects the makeup of the population to the extent possible. But again, always the most important thing is getting the right person for the job.”

Justice Eva Guzman, the only Latina on the court and the highest vote-getter in the 2016 Republican primary, said diversity “broadens perspectives.”

And, DeFrancesco Soto said, it might offer a political advantage, too.

“At this time where your moderate Republican women and independent women kind of raise their eyebrows at what some sections of the GOP are doing, this is your chance to highlight that you guys are aware of the need to cater to both genders,” she said. “That’s a missed opportunity.”

Disclosure: The University of Texas at Austin and Baylor University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.