DeLay Case Turns Spotlight On Texas Judicial SystemBy RALPH BLUMENTHAL
November 8, 2005
Hauled into court alongside Representative Tom DeLay, the Texas judicial system is also on trial.
One of only seven states to elect all of its judges on partisan tickets, Texas, some critics say, all but invented the million-dollar judgeship.
With prosecution and defense objecting to a string of judges, the DeLay case has produced a conundrum: can a partisan Republican defendant appear to get a fair trial from a partisan Democratic judge, as revealed by the political contributions the judge made? Traditionally, the focus has been on the money the judges received.
''Judges in Texas swing the gavel with one hand and take money with the other,'' said Craig McDonald, director of Texans for Public Justice, a nonpartisan group that tracks the influence of money and corporate power in the state.
Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove.
Thomas R. Phillips, chief justice of the Texas Supreme Court from 1988 to 2004 and an opponent of partisan judicial elections, linked the trend to events long before Mr. Rove's efforts. ''We were probably the first state in the nation to make judicial races as expensive as hotly contested regular political campaigns,'' he said.
In the prosecution of Mr. DeLay, the powerful Texas Republican and former House majority leader who faces charges involving illegal corporate campaign donations, the question of judicial impartiality was answered in the negative. The judge, Bob Perkins, who was shown to have made about 30 contributions totaling $5,255 to Democratic candidates and causes since 2001, was replaced at a hearing in Austin last Tuesday, setting off a round of judicial hot potato.
The next to be handed the case, the district administrative judge, B. B. Schraub, a Republican, recused himself after a Democratic challenge. The case then went to the chief justice of the Texas Supreme Court, Wallace B. Jefferson, a Republican and perhaps the most partisan of all, who quickly handed off the case to an appointee, where it remains apparently for good.
The last man standing was Pat Priest, a 65-year-old semiretired judge from San Antonio. He is a Democrat, and he acknowledged making campaign contributions himself, but only of $150 each to three candidates for the Texas House last year.
''That's it, I'm a tightwad,'' Judge Priest said in an interview.
With District Attorney Ronnie Earle, a Democrat, making no move to challenge him, Judge Priest has quickly taken over the case. He scheduled a hearing for Nov. 22 on motions by Mr. DeLay's lawyers to quash the indictments or move the trial out of Austin, in Travis County, a Democratic holdout against the state's notable Republican swing that started in the 1990's.
The attack by Mr. DeLay's lead lawyers, Dick DeGuerin and Richard Keeton, on Judge Perkins's appearance of impartiality based on his political giving broke new legal ground, many experts said. ''I'm not aware of another time this was ever raised,'' Mr. Phillips said.
Mr. Earle called the move unprecedented and disputed the defense characterization of the case against Mr. DeLay as political. ''This is not a political case,'' Mr. Earle said. ''This is a criminal case.''
After Judge Perkins was removed last week by a visiting judge, C. W. Duncan Jr., Mr. Earle challenged the impartiality of Judge Schraub, the Republican administrative judge, to name a replacement. Judge Schraub turned the matter over to Chief Justice Jefferson, who was named by Gov. Rick Perry, the state's top Republican, and who had ties to the fund-raising group Texas for a Republican Majority, which was indicted along with Mr. DeLay.
Mr. Earle, who has been reviled by Mr. DeLay as ''a partisan zealot with a well-documented history of launching baseless investigations and indictments against his political enemies,'' sought Justice Jefferson's recusal as well. But the justice declined, saying he had already named Judge Priest to take over the case.
Judge Priest said that he expected to keep the case, but that ''each side can voice opposition if they're offended by my presence.''
George Shipley, a Democrat and former political consultant in Austin, called Judge Priest's selection ''tainted,'' as ''the fruit of a poisoned tree.'' He asked in an interview ''if there is one standard for all Texans and another for Tom DeLay because of his power?''
''Tom DeLay stands guilty of judge shopping in the most egregious and abusive form,'' he said, ''and DeGuerin knows this.''
Mr. DeGuerin, in turn, ridiculed Mr. Earle. ''He broke his own record for bringing three indictments in four days by bringing two recusal motions in one day,'' he said. ''I think he's exhausted, all that running around he did.''
The complaints against the Texas judicial system have a long history. In 1987, ''60 Minutes,'' in a program called ''Justice for Sale,'' showed Texas Supreme Court justices taking hundreds of thousands of dollars in campaign donations from lawyers appearing before them. Eleven years later, ''60 Minutes'' found that little had changed.
In 1998, Texas for Public Justice issued its own report, finding that the seven Texas Supreme Court justices elected since 1994 had raised $9.2 million, of which 40 percent came from interests with cases before the court. A survey taken for the court itself, the group said, found that nearly half of the judges themselves thought that campaign contributions significantly affected their decisions.