Conservativer than thou .... 
   
Challenger paints incumbent Texas Supreme Court Justice Debra Lehrmann as Liberal, not to mention as a Leftist Legislator 

On the conservative side of the political spectrum one of the worst things to say about a judge's job performance is that he or she legislates from the bench. Launching his bid for Place 3 on the Texas Supreme Court, sitting First Court of Appeals Justice Michael Massengale has done just that, promising that he will not be guilty of that offense, if elected.

But he is not taking on a wayward liberal ready to be knocked off the bench with gusto, Texas-style. The Texas Supreme Court is firmly in Republican clutches, and there are no easy pickings. The seat on the nine-member high-court he has set his eyes on is currently occupied by a fellow Republican, Debra Lehrmann, who has made it known that she loves the job and will fight to keep it.

Massengale's announcement: He does not mention Opponent
Lehrmann by name 
Massengale v Lehrmann is a judicial contest in which the Republican primary electorate will ultimately render judgment, and there won't be any findings of facts and conclusions of law to explain the outcome. Nor any appeal of the verdict. The election contest will be it, and the only thing that counts is winning. The appeals - including appeals to primary voters' preconceived notions of what makes for good and not-so-good judges -- come before the critical decision-making event, not after.

And Massengale is getting an early start.

But what does it mean to not legislate from the bench, and what is conservative justice, as a distinct genre? 

To legislate means to make law, and the specific term refers to such law-making by the legislature, one of the three branches in the separation-of-powers system. So, by definition, the Supreme Court does not legislate. Legislating from the bench is an insult meted out upon those judges whose decisions are disfavored, and who allegedly usurped the function of the legislature in making those decisions and justifying them in appellate opinions.

But that does not mean the Supreme Court is not a policymaker; does not make binding rules; does not make law.

Quite to the contrary.

The Texas Supreme Court makes law by announcing what the state's common law is, and occasionally modifying it.  And it does not just do so by press release. It does so by issuing opinions that have the force of binding precedent for the state as a whole. Case law that all lower courts have to follow, if they like it or not. And the same goes for declaring what constitutional law is and is not and how it applies, and what statutes enacted by the Texas Legislature mean, for that matter. Rather than calling it interpretation, lawyers and jurists merely use a fancier term: statutory construction.

The Supreme Court makes law through opinions it issues upon deciding the legal issues presented in cases it decides to review. That is its principal function.

The Supreme Court also promulgates, and periodically amends and revises, the rules of court, a recent example being the new Rules of Evidence. And that is not even an adjudicative function. It is a legislative function, albeit of the delegated variety. The Texas Supreme Court also oversees the State Bar and the attorney disciplinary system, and makes the rules by which it operates.

So, when Justice Massengale says he will not legislate from the bench, is he saying that he does not intend to do his job, should he be elected to the Texas Supreme Court, or that he does not understand the multiple roles the court of last resort in civil matters performs in this state's system of government?

Surely not.

Much rather, it is readily apparent that he is broadcasting buzz words to attract primary votes implying that his opponent is an out-of-control liberal. thereby hoping to counteract her incumbency advantage, and her already well-established record on the court to which Massengale now aspires.

Which just goes to show that judges are politicians, not just jurists, and that some are prone to stoop low when it comes to the exigencies of having to win an election, in this case a primary contest against an opponent deemed, for whatever reason, to be the most vulnerable of those up for re-election in the forthcoming season.

Not only are Massengale and Lehrmann both Republicans and bona-fide conservatives; they were both initially appointed to their respective appellate posts by Governor Rick Perry. So, in his rhetoric, Massengale is positioning himself to the right of Lehrmann, which puts him on a point of the ideological spectrum where he can paint her as a leftie, and as an activist judge. Massengale claims to be not merely more conservative than thou, but styles himself as the conservative choice in the primary race. Just what Republican primary voters need and deserve. What does that make Lehrmann? 

CASE-SPECIFIC CONSERVATISM: A TEST CASE - WHAT WOULD A TRUE CONSERVATIVE DO? 

So how would Massengale decide a case with a defining hot-button social values issue like same-sex divorce case disposed of by the Supremes last week?

How would Massengale tackle the issues in State v Naylor & Daly as a true conservative, and as a jurist who does not legislate from the bench? The case in which a majority of the current supreme court, in an opinion written by Justice Jeff Brown, ultimately concluded that the issue of same-sex marriage and legality of divorce could not be reached for jurisdictional reasons because the AG did not intervene in a timely manner and did not have standing to appeal?


State of Texas v. Naylor, No. 11-0114 (Tex. June 19, 2015)
("We agree with the court of appeals that the State lacks standing to appeal the trial court’s decree.").

Would Massengale hold the Attorney General to the same rules and standards that govern interventions in the trial courts that other would-be interlopers have to abide by, or would he join Justice Willett in amending the common-law to allow the Attorney General to appeal as a nonparty? Or would he join Justice Devine's dissent and address the merits of the federal constitutional arguments that Justice Willett complains the Attorney General was not even heard on?

What's a true conservative and a strict constructionist to do in such a messy case? 

Obviously, the current members did not come to a consensus, even though State of Texas v. Naylor & Daly had been lingering on the docket for years, and even though they ordered an additional round of briefing to address the implications, if any, of freshly decided federal cases.

Nor would the addition of Massengale even have made a difference. Justice Devine, whose strategy playbook for success in the Republican primaries Massengale appears to be emulating, found himself in a minority of one, and the majority of five in favor of jurisdictional dismissal would still have prevailed even if Lehrmann had participated in deciding the case, no matter how she would have voted. Unless Lehrmann -- or in her place Massengale -- could have persuaded the peers to switch their votes.

The same majority, or even a larger one, may yet reach the merits, - in one of the other two same-sex marriage cases that remain pending, assuming the U.S. Supreme Court does not take the burden of deciding them on their merits out of their hands. The case numbers in the Texas Supreme Court are 15-0139 and 15-0135 respectively. Both cases are styled In Re State of Texas because they are mandamus proceedings. 

But at least one of these pending same-sex marriage cases is procedurally messy also. The underlying lawsuit against the Travis County Clerk was nonsuited by the parties after they got their same-sex marriage license on orders of a Travis County district court judge. Goodfriend v. Debeauvoir, No. D-1-GN-15-000632 (Travis Cnty. Dist. Ct. Feb. 19, 2015).


And you can't normally appeal a nonsuited case because the nonsuit renders it moot. Not to mention mandamusing a trial judge to set aside a temporary restraining order that is no longer in effect.

So what would Massengale do were he already a member of the Texas Supreme Court? 
How would he put his credo into effect? 

Would he deny the Attorney General's petition as procedurally barred? Would he come up with a new ad hoc rule allowing the AG to attack a moot TRO citing "unique and extraordinary circumstances" (which Justice Lehrman and other thoughtful jurists might very well view as an exercise in legislating from the bench), or would he -- like Justice Devine -- simply write a dissenting opinion addressing the merits of the issue about which - as a self-declared true conservative - he presumably feels strongly: Same-sex marriage? -- Never mind mootness, jurisdiction, and procedural posture.


RELATED LINKS:

Justice Lehrmann's Official Bio and Pic on Texas Supreme Court Website
Justice Massengale's Official Bio and Pic on First Court of Appeals Website

Massengale to Challenge Lehrmann for Supreme Court Seat, by Ross Ramsey in The Texas Tribune June 16, 2015.





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