Texas Supreme Court to Juries: Get Bent
Let's shift our focus today from the U.S. Attorney scandal to a scandalous ruling out of Texas. But before we do, let's briefly play that "Six Degrees of Separation" game. Before he became a disastrous Attorney General, Alberto R. Gonzales was a disastrous White House counsel. And when he left that post he was replaced by Harriet Miers. And when Harriet Miers was nominated for a position on the Supreme Court, her most vocal (and some say overzealous) supporter was Texas Supreme Court Justice Nathan Hecht. Hecht is the fellow who authored the ruling that has folks fired up in the Lone Star State. And of course before Gonzales was a miserable White House counsel and a pathetic Attorney General he was a lame Justice on the Texas Supreme Court. See? Like everything else in the world, misfeasance is interrelated!
The Texas Observer's Anthony Zurcher this past week focused at length upon this decision in an otherwise unremarkable case about restraint of trade in the bottling industry. What's so significant about the ruling, according to Zurcher and others, is that the Court's majority, led by Hecht, overruled the jury's verdict in the case late last year without apparent good cause despite the presence of evidence that could have supported (and obviously did support) the jury's conclusions. Here is how Zurcher put it: "More than a few scholars argue that the state Supreme Court doesn't have a sound legal principle with which to justify its decision. Worse, they fear it opens the door for other Texas courts to begin arbitrarily tossing aside jury verdicts with which they disagree. If the high court continues on this course, they say, the constitutional right to a civil jury trial could be in jeopardy." The Texas Supreme Court has been asked to reconsider its decision and has until the end of the month to decide what to do.
Here is another perspective on the ruling-- one culled from seven law professors in the state by some trial lawyers there. The lawyers paraphrase the professors this way: "Our central concern, stated plainly and emphatically, is that it is troubling to see the Court reject a verdict in which the jury found it to be (at least) more likely than not that the Petitioners had violated the antitrust laws when the Court does not declare the evidence on which the verdict was based to be legally inadmissable. In the absence of a more searching inquiry, the majority's opinion seems merely to have substituted its judgment for that of the jury."
Typically, that's a no-no. In fact, judges typically bend over backward to give great deference to jury verdicts even when reasonable people (and reasonable judges) might disagree with the results of a particular case. But in Texas, with Hecht at the helm, anti-jury rulings are become increasingly popular. Why? Well, for one thing, those pesky jurors are more susceptible to siding with plaintiffs and against corporate defendans in civil cases, a scenario that Hecht and his fellow conservative travelers don't exactly embrace. And, of course, therein lies the irony -- so-called "conservative" justices signing on to endorse a position that is truly revolutionary in our centuries-long system of respecting jury verdicts. Remember that phrase "judicial activism"? The one thrown around so carelessly by conservatives when they don't like the results of a particular case? Well, what Hecht and Company are doing in Texas truly is "judicial activism" in the fairest sense of the word. No wonder the legal community there is up in arms.
By Andrew Cohen |
May 8, 2007; 8:44 AM ET
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Posted by: judgito | May 8, 2007 02:18 PM
If justice were worth it, we wouldn't have our current system of beholden judges. Supreme Justice Thomas is the most glaring example. Can a truly impartial observer look at his confirmation testimony and claim he didn't perjure himself? Yet he sits on the highest court in the land with life-time tenure. His opinions are as predictable as the Big-Republican agenda.
Posted by: Dave | May 8, 2007 04:18 PM
Texas Judges are elected and appointed in the event of an early vacancy. Between Alberto and this decision by Texas's SCOTUS; I think people will begin to appreciate what it means to have a James Madison, Alexander Hamilton, or Thomas Jefferson when you start talking about creating a Constitution.
In contrast we have the Great Minds that created the Texas state constitutions of 1836, 1845, 1861, 1866, and 1876. After this president, I hope to God that the Lone Staters spare the rest of the country from this kind of misery again by writing a Constitution that brings it at least concurrent with the 18th century and the Enlightenment debates that informed our Federal Constitution.
Posted by: JP2 | May 8, 2007 08:30 PM
Texas justice has always been unique. My brother William Harrison, TDCJ 864645 is now doing 20 years for one count of sexual assault. Every picture he had of his wife of some ten years, and the girls he dated in high school and college were judged by the court to represent a past sexual victim. The fact he had been married for almost a decade was not even raised at his trial. Now the same Texas incompetence is being seen at the federal level--As de Tocqueville said--A people get the government they deserve
Posted by: JIM | May 9, 2007 01:13 AM
This is right in keeping with Alberto Gonzales' denying that habeas corpus is not included as a right in the U.S. Constitution, because those words were not mentioned. Now the right to trial by jury can also be upended by the king, or his appointed judges. The Bush Crime Family, and its bastard spawn in the Texas courts, are doing away with the Magna Carta.
As always, I'm SO glad I left the United States. I'm in a country now that does not have the formal legal rights granted to Americans, but down here, the government actually believes it should respect the citizenry. What a concept!
Posted by: Bukko in Australia | May 9, 2007 04:42 AM
Bukko, it's not just George the King; the claiming of loopholes by lawyers along the lines of original sin, and using that as justification to do anything, or the simulating the externals of actions without the empirical change in one's habits that honest learning them would have entailed, have been sanctioned,typified, even appropriated as the rights intended by the framers of this government, in numerous areas of American life since the 70's.
Posted by: Hamilton | May 9, 2007 01:43 PM
Alberto "Brownie" Wolfowitz is doin' a heckuva job.
Posted by: max | May 9, 2007 02:29 PM
I wonder what kind of appointment Bush has lined up for Nathan Hecht? Maybe the new head of the World Bank once Wolfie is gone? He most certainly seems to be the kind of team player that Bush is always looking for.
Posted by: porkchopthecommon | May 9, 2007 03:44 PM
Is it too late to give Texas back to the Mexicans?
The only thing good I have seen come out of Texas is molly Ivins . . . and she died. So there's no longer any reason for us putting up with them. Let's give it back and then change our address so the Mexican Gov't. can't locate us when they want to return it!
Posted by: R Alderson | May 9, 2007 04:14 PM
The Texas Legal system is a perfect example of what happens when Partisan Politics is entrenched into a Judicial System. The ruling by Judge Hetch shows just how important it is to keep partisanship out of our legal system. It's so discouraging to see the great State of Texas suffering from the placement of the Neo-con paradise idealogues. What's happening in Texas is a perfect example of why we need to get to to the bottom of the current scandal regarding political appointees throughout this Administration!!
Posted by: scottyurb | May 9, 2007 04:56 PM
Bill O`Who?
Posted by: Bill MacLeod | May 9, 2007 07:18 PM
Two ways to lose a democracy:
1)Concoct a national emergency and place the country under marshal law as the Nazis did with the burning of the Reichstag (national parliament building) in 1933 Germany.
2)Have succession of illegal scandals, beginning with Watergate, segueing into Iran/Contragate, Floridagate, Ohiogate ad nauseum, until the electorate is so jaded they view dirty politics as business as usual. Maybe in the future we'll be known at the country that lost its system of government while everyone watched TV. Colosseum equals American Idol?
Posted by: Dave | May 9, 2007 08:30 PM
I believe gonzales should be water-boarded
in order to get the truth out.I believe in
using his methods of torture while he is
questioned by the Senate.If he is found
guilty of anything he should be sent to
"Git Mo"
Posted by: Bob | May 10, 2007 11:42 AM
Why does this come as a surprise to anyone?
I had the misfortune to be stationed in El Paso Texas while in the Army back in 1971-72. And the observed stereotype of Texans I observed there were people who's mouths dripped with honey, while they were plunging the knife in your back, and every native texan I every met was a overblown braggart and blowhard. I am sure there are good people in in Texas, but I was never priviliged to meet any. They would have long ago divided in half but although the western half of the state would have no trouble being called simply "TEX" that left the populous east side of the state known as "Ass". Nuf Said!
Posted by: David K. Eplett | May 10, 2007 06:26 PM
R.Alderson--
"The only thing good I have seen come out of Texas is molly Ivins . . ."
That is god's own truth..... R.I.P., Molly; you will always be remembered.
Posted by: nat | May 10, 2007 06:32 PM
Ahh, El Paso... I was stationed there in 1986. I liked it! Huecho Tanks is a marvelous place. And there used to be a steakhouse about 20 miles east of town that was out of this world. I wouldn't generalize about an entire population. And what about Ann Richardson?
Posted by: Dave | May 10, 2007 09:24 PM
The comments to this entry are closed.
After reading Zurcher's article, it's hard to disagree with Mr. Cohen on this particular case. But, in a larger sense, the case points to a problem that continually plagues our judicial system, that of jury selection.
I am not a lawyer, but have long felt there MUST be a better way to select umpires than to give the team managers veto power over them; indeed, it seems most fair, as in double-blind research scenarios, that any interested parties in a case should have nothing to do with jury selection at all.
The trial judge, after all, is presumed to be the only truly dispassionate, objective party to the trial before a jury is empaneled. Shouldn't the judge (or better yet, a panel of judges not assigned to the case) select a jury, then present them to both sides in the dispute as a fait accompli just before the trial begins?
I'm sure there are many logistical hurdles to implementing such a system, but surely justice is worth it.