Texas has long been one of the most conservative states in the country, a massive state utterly dominated by Republicans at every level of government. But Democrats saw promising results in the 2018 midterms, as they succeeded in winning two GOP-held Congressional seats while Beto O’Rourke came within three points of upsetting incumbent Senator Ted Cruz in a much-watched Senate race.
But while the Senate and House races received significant national attention, Democrats also succeeded in winning a handful of under-the-radar judicial races, evicting multiple conservative judges on important benches across the state. No one was staying up late on election night watching MSNBC coverage of Texas judicial races, but these are important positions that exercise significant influence over the day-to-day lives of hundreds of thousands of Texans.
However, Abbott took steps to ensure that many of the judges defeated on Election Night weren’t unemployed for long. The governor has appointed several of the judges to new judicial seats, raising eyebrows – if not significant opposition – among the state legislature’s Democratic minority.
Democratic Gains in the Texas Courts
Like many states, Texas holds partisan elections for many of its judgeships. These races are often sharply contested, especially on the state Supreme Court, which has frequently served as a launching pad for its justices’ political ambitions.
The Texas governor has broad powers to appoint various judges, and those appointments are rarely contested in any serious way. And since Republicans have controlled the Texas governor’s mansion since 1995, the GOP holds broad dominance of the state courts. However, these are not lifetime appointments, and judges appointed by the governor eventually have to face voters.
Democrats were unable to flip any of the seats on the Texas Supreme Court in 2018, but they otherwise had a solid night in judicial elections. The party was able to defeat nine incumbent Republican judges across the state, often by thin margins. In doing so, they secured majorities on a handful of important benches in major metropolitan areas.
Appointing Qualified Judges or “Thumbing His Nose at Voters?”
As the Associated Press reported in March, Governor Abbott – who easily won his own re-election contest in 2018 – had made six judicial appointments since Election Night. Four of those appointments were judges who had been defeated in the 2018 midterms.
The most prominent among them was Brett Busby, a member of the conservative and highly influential Federalist Society. Busby had first won election to the Houston-area 14th Court of Appeals in 2012. But he was defeated in 2018 by Democrat Jerry Zimmerer, who won by about 42,000 votes and three percentage points.
Governor Abbott ensured Judge Busby had a rather pleasant consolation prize – a seat on the state Supreme Court. The appointment – made so soon after Busby’s 2018 defeat – raised eyebrows, but Busby experienced a smooth confirmation process and won unanimous approval from the state Senate in late March.
Another judge, Greg Perkes, was appointed to the 13th Court of Appeals. Judge Perkes had already served on that court, only to be voted out in 2016. He ran for a seat on the 13th Court in 2018 and lost again. He will serve with the two Democrats who defeated him in those elections.
Governor Abbott and his spokespeople have claimed that the judges were chosen strictly for their qualifications and dismissed their previous election results as irrelevant.
Under Texas law, the governor’s appointees must win a 2/3 vote in the state Senate. Democrats are in the minority in the Senate, but – in theory – they have enough votes to block the governor’s judicial appointments if they vote unanimously against those appointees. However, it is unusual for legislators to meaningfully oppose a governor’s appointments, and Democrats have not mounted any opposition to Governor Abbott’s judicial choices. In fact, three of the judges were presented to the Senate by their local Democratic Senators.
All of Governor Abbott’s judicial appointees will face voters in the 2020 elections if they wish to keep their jobs.