With last week’s confirmation of Texas Supreme Court Justice Jeff Brown to the U.S. District Court in Galveston, Gov. Greg Abbott will soon make his third appointment in five years to the state’s high court.
There’s a sentiment that the governor should give strong consideration to diverse applicants for the open seat on SCOTX. After all, while Gov. Abbott’s picks have not altered the ethnic or gender makeup of the Supreme Court, six of the current eight justices are white, non-Hispanic men. And some wags on Twitter have even suggested that to bring “real diversity” to the Court, Gov. Abbott should appoint a Democrat, as the Court has been entirely Republican for a generation.
While I would certainly support Gov. Abbott selecting a new justice who increases the visible diversity of the Texas Supreme Court, there’s another, more subtle form of diversity that has also, for too long, been overlooked in appointing justices: geographic diversity.
Remarkably, the last time that anyone from the Dallas-Fort Worth Motorplex was elevated to the Texas Supreme Court was 22 years ago in 1997, when then-Gov. George W. Bush appointed Justice Deborah Hankinson. So it’s been nearly a quarter century since a Texas governor has promoted any North Texas judge or lawyer to SCOTX. That’s nothing short of bizarre, as DFW is the most populous and fastest growing region of Texas, with a huge percentage of the state’s lawyers practicing in the Metroplex’s vast and complex legal market.
Moreover, there’s no lack of appellate talent in North Texas. The DFW area is home to two of the state’s leading intermediate appellate courts, as well as numerous respected trial judges and top-tier appellate lawyers.
Of the eight current SCOTX justices, only two have close ties to DFW. Chief Justice Nathan Hecht is originally from Dallas, but he’s been on the bench in Austin continuously since the late 1980s and, at this point, is perhaps better viewed as an Austinite than a Dallasite (and, unfortunately, this outstanding jurist is just a few years from mandatory retirement under Texas law). Justice Debra H. Lehrmann is from Fort Worth, but instead of being selected by the governor, she ascended to the Court by running and prevailing in a wild seven-way GOP primary and run-off election in 2010. And that’s it – from a metro area of nearly seven million people that is the vibrant heart of Texas’ white collar economy.
As a Dallas-based appellate lawyer, it’s profoundly odd to me that our state’s largest and busiest appellate court, the Dallas Court of Appeals, has been persistently overlooked by three successive Texas governors when selecting Supreme Court justices. And our DFW siblings at the respected Fort Worth Court of Appeals have fared no better. Indeed, we DFW appellate lawyers sometimes joke about SCOTX being the “Highway 290 Supreme Court” as every justice on the current Texas Supreme Court who reached the bench through gubernatorial appointment is from either Houston or Austin. Even the departing member of SCOTX, Justice-turned-Federal Judge Jeff Brown, is a Houstonian. The only two justices who are not from Houston or Austin on the current Texas Supreme Court, Justice Paul W. Green of San Antonio and Justice Debra Lehrmann of Fort Worth, both won their respective benches as candidates in hard-fought GOP primary elections.
Speaking of judicial elections, adding a DFW justice to the Texas Supreme Court would be smart politics for Gov. Abbott and the Texas GOP. The November 2020 election in Texas will be the first without straight party ticket voting, meaning that voters will have to select a candidate in all down-ballot races, including judicial races. A new SCOTX justice from DFW could help keep North Texas voters inside the booth to vote in those down-ballot races – particularly if the new justice is a proven campaigner in his or her home territory.
Conversations with various political and judicial insiders have shed little light on how this decades-old pattern of governors almost exclusively appointing Houstonians and Austinites to the Texas Supreme Court came to be. Several opined that no one had noticed – or at least publicly identified – this pattern before. Others noted that each appointment is considered, to a degree, in isolation, such that the home city of a prior appointee is simply not part of the equation.
Other states have taken steps to insure that one region or city does not dominate their highest courts. For example, Tennessee, a state whose history is inextricably tied to that of Texas, has a five-member Supreme Court where no more than two justices may come from any one of the state’s three “Grand Divisions” – East Tennessee, Middle Tennessee and West Tennessee. This Tennessee constitutional provision is intended to prevent regional bias and to insure that a lawyer from, say, Memphis, does not have to argue a case before, for example, an all-Nashville state Supreme Court.
While Texas is far larger with more even distinct regions than Tennessee, there’s no need to amend the Texas Constitution to add a similar requirement, provided our governors will occasionally look beyond Houston and Austin for their selections to the Texas Supreme Court.
Regardless of how the “Highway 290 Supreme Court” came about, it’s time for Gov. Abbott to appoint someone who is not from Houston or Austin to our state’s highest court. As the largest urban area in Texas, the Dallas-Fort Worth Metroplex is the natural place to look for that next justice. Happily, there is a deep bench of judicial and appellate talent in North Texas.
Christopher D. Kratovil is the Dallas office managing member of Dykema and a member of the firm’s litigation department.