Stacking the Texas Supreme Court

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From The Wall Street Journal, By Kate Bachelder, Feb. 26, 2014 –

As primary season for the 2014 midterms continues, Congress isn’t the only place GOP candidates face opponents. In Texas, trial lawyers are funding primary challengers against three Republican justices on the state Supreme Court.

Texas is one of seven states that elects Supreme Court justices on partisan ballots, and four of the court’s nine justices face re-election in 2014. Three of those four—Chief Justice Nathan Hecht, Justice Jeff Brown and Justice Phil Johnson —must defeat challengers in a March 4 primary before the general election in November. The three challengers have something in common: They are all bankrolled by personal injury mega-lawyer Mark Lanier and members of his firm.

Take Robert E. Talton, a former state legislator who seeks to unseat the longest-serving justice in the court’s history, Chief Justice Hecht. Mr. Talton recently raised $30,000, every cent of it from members of the Lanier law firm, according to Texas Ethics Commission filings. There’s also Joe Pool, who has never been a judge but is taking on Justice Brown. Mr. Pool reported in TEC filings that $30,000 of his reported $33,100 came from members of the Lanier law firm. Then there’s Justice Johnson’s challenger, appellate Justice Sharon McCally, who received $5,000 from Mr. Lanier. Lawyers and law firms account for roughly 90% of the $47,750 she reported in January filings.

Trial lawyers have a simple agenda: Put our guys back on the court. Texas was trial-lawyer nirvana—with 300 lawsuits for every 100 doctors, in some areas—when in 2003 Republican Gov. Rick Perry signed comprehensive tort reform. Doctors have since moved to the state in droves, and malpractice insurance premiums have fallen by more than 60% over the past decade. But the plaintiffs bar wants to relive the glory days of the 1970s and 80s when a sympathetic court more often ruled in its favor, such as a 1988 decision to strike down a cap on medical malpractice damages.

Yet it’s unusual to have a tort reform debate in a GOP primary. That’s because after decades of Republican domination on the Supreme Court, lawyers who typically give to Democrats have realized that backing Republicans is their best shot at winning. Democratic donor and trial lawyer John Eddie Williams, for instance, hosted a fundraiser for the three challengers last week. The primary challengers have all branded themselves as “the conservative candidate,” though Mr. Perry and the states two GOP senators, John Cornyn and Ted Cruz, have all endorsed the incumbents.

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