Balancing the Bench
Texas Governor George Bush now has a chance to address the huge racial imbalance in the Harris County judiciary. Whether he does or not depends on a tangled set of judicial appointment considerations, including candidate resumes, party loyalty and festering grudges involving the aspirants for the jobs.
With only two African-Americans and one Hispanic among 78 Houston-based district and appellate jurists, Bush is set to make appointments to two district benches and one appellate court. Dozens of candidates threw their names into the Guv's Stetson for the judgeships, and a short list of finalists is being culled by Bush's appointments chief Clay Johnson.
In recent years, gubernatorial appointment has been virtually the only way for minorities to go on to win Harris County-wide election as judges. Bush had appointed the three incumbents, Dwight Jefferson, Belinda Hill and David Medina, who were victorious in the November election. (Incoming County Judge Mike Fields, a former prosecutor, is the one local exception to the appointment rule: The African-American beat an Anglo incumbent in last spring's GOP primary and went on to victory in the general election.)
Bracewell & Patterson attorney Pat Oxford chaired Bush's Harris County campaign and is considered one of the governor's best local sources for judicial input. Oxford says Johnson calls the shots on evaluating appointments, and "no one in the region has direct impact on the appointments, although from time to time all kinds of people are called in Houston with respect to applications that are filed."
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Still, Oxford says his sense is that the racial imbalance in the county judiciary is a factor for Bush in making the appointments, but he's not sure how much weight race will carry in the selection. The governor's choice must come from the applications being screened by Johnson, though Oxford notes the field is still open and there may be more entries.
Bush will name replacements in three courts: the 125th Civil District Court, the bench vacated by Judge Don Wittig's election to an appellate post; the 338th criminal court, where Judge Mary Bacon retired; and the 14th Court of Appeals, where an opening was created by the election of Justice Harriet O'Neill to the Texas Supreme Court.
The most controversial choice will be for the 338th. One of the favorites to win the governor's nod is Don Stricklin, the first assistant to District Attorney Johnny Holmes. A judicial source speculates that Stricklin would never have formally applied for the job had he not been assured by Bush's staff that the appointment was a done deal. But Stricklin is also a prosecutor with enemies in both Democratic and GOP county ranks.
Stricklin incurred the ire of the Mexican American Bar Association in Houston for his dogged prosecution of former district judge Lupe Salinas on felony charges for minor campaign report violations. Although a judge eventually dismissed the case, the prosecution destroyed Salinas's chance at a presidential nomination to the federal judiciary. As we went to press, MABA officials were making a last-ditch effort to stop Stricklin's appointment, by getting members' approval to send a protest letter to Bush opposing Stricklin's candidacy.
MABA president Arturo DeLeon says the charges against Salinas and another MABA member, Arnold Govea, were "political in nature, and certainly I don't feel Stricklin is a friend of the Hispanic community or Hispanic attorneys."
As Holmes's top administrator, Stricklin has also absorbed some community ire as a result of a grand jury's failure to indict officers in the police killing of Mexican national Pedro Oregon. Holmes refused to submit the shooting to another grand jury, in stark contrast to Stricklin's pursuit of Salinas through three different grand juries.
Democrats and minorities are not Stricklin's only critics. He also angered former county judge and current GOP state Senator Jon Lindsay by overseeing a perjury prosecution of Lindsay for filing false campaign reports. Unlike Salinas -- now a visiting judge in the Rio Grande Valley working toward getting vested in his judicial pension -- Lindsay has the power to exact revenge.
Lindsay represents the district in north Harris County, where Stricklin resides. Traditional senatorial courtesy leaves him the right to approve or nix the governor's appointments for his area. Thus, the senator has the perfect opportunity for a payback on the prosecutor who once tried to nail him on a felony charge.
Although the courthouse has been rife with rumors that Lindsay would do just that, neither the senator nor Stricklin returned Insider calls to discuss that scenario. A consultant close to Lindsay doubts the senator would do anything so obvious as to deep-six Stricklin's appointment -- one reason being the judicial family connections at the courthouse. The senator's wife, Tony Lindsay, and Stricklin's wife, Debbie Mantooth Stricklin, are both district judges. Think how socially and professionally awkward it would be for the two women, says this source, if the hubby of one zapped the judicial aspirations of the hubby of the other.
Of the supposed bad blood between the pair, one courthouse observer cautions that "there's no hotbed of political gossip more often inaccurate than the Harris County courthouse. These judges and the people around them are yapping all the time about stuff they don't have a clue about."
With that caveat in mind, the consensus of the courthouse crowd is that the sudden judicial interest shown by Stricklin -- long considered a potential successor to Holmes -- clearly indicates that Holmes has no intention of retiring soon, even after two decades as district attorney. Stricklin's chances for a judgeship are widely seen as tied to Holmes's support. But the D.A. has stayed relatively neutral in the past, insisting all the candidates who work in his office are qualified to be criminal judges.
In any case, Bush has a virtual pick of District Attorney Holmes's prosecutorial pack for the open criminal bench. On the minority side, the field includes Elsa Alcala, a chief prosecutor on the D.A.'s Organized Crime Strike Force who has more than a decade of experience; Ramon "Ray" Echeverria, a special crimes prosecutor; and Julian Ramirez, another chief prosecutor. Joseph Ownby, the black chief prosecutor in Bacon's court, is an applicant who is popular with several judges and court staffers.
Other Anglo prosecutors seeking the job are Kelly Siegler, George Young, Chuck Rosenthal and Jay Karahan. Randy Ayers, who returned to the D.A.'s office after an unsuccessful run against Judge Jeannie Barr, is also an applicant.
Visiting Judge Pat Lykos, who resigned her criminal district bench to enter the state attorney general's race four years ago, applied for the 338th as well as the other two open judgeships.
Wittig's 125th bench has drawn nine applicants. Levi Benton, an African-American lawyer and former business administrator at Bellaire General Hospital, is considered the strongest minority applicant for the job. As a Democrat, Benton ran against state Rep. Al Edwards several years back. That move might be overlooked by the GOP since Edwards's district is rock-solid liberal and off-limits to any serious Republican challenge. Another applicant, Willard Tinsley, once ran as a Democrat for a judgeship, then later ran as a Republican. His track record may not be so easily excused by party purists.
Karen Beasley Lukin, another hopeful for a Bush appointment, lost in last spring's GOP primary against Jeff Work, the newly elected 189th district judge. Others vying for the appointment include Charles Frost, Elsie Martin-Simon, Lee Thibodeaux, Patrick Timmons and William Luck.
Hardest to figure is the 14th Court of Appeals appointment. A list of applicants provided to the Press by Bush's appointments office names everyone who has expressed an interest in the appeals court in the last four years. Included are such unlikelies as crusty district Judge Sharolyn Wood, who once applied for chief justice of the court but reportedly got into an argument with Johnson during her interview. [Note to applicants who wish to succeed: Do not get into tiffs with the governor's appointments chief if you're serious about the job.]
Winnowing the deadwood off the list, front-runners include Gardere Wynne Sewell and Riggs managing partner Paul Allan Port, a witness last year in the Texas Judicial Conduct Commission proceeding that led to the resignation of Judge William Bell. Candidate Miles Whittington was a Bush appointee to a Galveston district bench who lost in the last election to a Democrat.
Judge Jefferson, the Harris County district incumbent, has not applied but is said to be interested in the appellate appointment. When Bush named him to the district bench, he openly warned away potential GOP primary challengers to Jefferson. Bush vowed to campaign personally for Jefferson if his selection of a minority drew any primary opponents.
The notion that the governor should consider race as a factor in any of the three appointments strikes Houston affirmative action opponent Ed Blum as inappropriate and no different from granting business preferences along ethnic guidelines.
"I don't believe that race, ethnicity or religion should be a criteria that should be evaluated either in appointments or the application process of anything," says Blum, the founder of the Campaign for a Color-Blind America. "In terms of the governor saying affirmatively, 'I want to appoint an African-American to this bench -- find me one,' I don't approve of that. Once you start to use race and ethnicity, or religion, you're really wading into very deep, uncharted waters."
Of course, suggests Blum, Bush could find other criteria to justify arriving at a similar outcome if he found himself choosing between applicants of roughly equal credentials. Referring to applicant Alcala, Blum speculates "perhaps she grew up in an inner-city neighborhood, and perhaps went to an inner-city high school, and perhaps she put herself through a university on scholarship. If so, that's a very different profile from [someone like] Stricklin. All of those things can come into effect [in deciding the appointment]."
In short, Blum says the governor "by using fair and honest demographic differences and casting the widest possible net ... can snare qualified people with unique backgrounds who just happen to be black and happen to be Hispanic."
Bush's Democratic predecessor Ann Richards often made appointments with the declared purpose of boosting the representation of women and minorities. Since that line doesn't go down too well in the governor's own party, he can always utilize Blum's rationale to explain how appointing minorities to redress the judicial race gap doesn't involve affirmative action at all.
Of course, Bush will have to restrain himself from winking after he makes that announcement....
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