You are here

LEGITIMATE JUDICIAL CANDIDATES MUST BE ‘JUDICIOUS’

January 11, 2016
American Spectator
Mark Pulliam

Texas is an unusual state in many respects: the largest of the contiguous United States; home of three of America’s ten most populous cities; the biggest producer of oil, beef, cotton, and wool in the U.S.; the best economic climate; one of the few states to exist as a sovereign nation (1836-1845) prior to joining the union; and the only one to fight and win a war for independence. Texans are extraordinarily proud of these distinctions, as well as barbecue, the University of Texas, Willie Nelson, Tex-Mex, and Blue Bell Ice Cream. (The Dallas Cowboys, alas, not so much anymore.) Texans should also be proud of the Texas Supreme Court — and care enough to look into who they are voting for.

Texas, you see, is one of the few states that select all their judges in partisan political elections. Texas voters tilt decidedly conservative, so the nine justices on the Texas Supreme Court are — like all other statewide elected officials — Republican. A corollary to this is that the most important election for statewide office is not the general in November (in which no Democrat has prevailed for over two decades), but the Republican primary — held this year on March 1. Unlike other elected officials, incumbent judges are not necessarily shoo-ins for re-election; they often lack name ID and have difficulty raising funds. Accordingly, in expensive statewide campaigns, judicial incumbents can be vulnerable to challenge. Three incumbent Supreme Court justices are on the ballot this year, and all face challengers, but the focus of this piece is on Place 5, currently held by Justice Paul W. Green. He faces a primary challenge by conservative activist and radio talk show host, Rick Green.

I have written elsewhere about the Green versus Green race, and the understandable — and perhaps calculated?--potential for confusion by Texas voters, who in 1976 elected to the supreme court an obscure, scandal-ridden lawyer named Don Yarbrough, apparently confusing him with former longtime U.S. Senator Ralph Yarborough. Here, I wish to discuss a different aspect of the race: the candidates’ experience, judicial temperament, and reputation for character and integrity. Unlike the other branches of government, courts derive their moral authority from public respect, which requires that judges maintain the appearance of fairness and impartiality. For that reason, the conduct of judges must be honorable, dignified, and beyond reproach. Judges must be judicious, and act judiciously. The same is true of judicial candidates.

It is not difficult to evaluate the respective records of Paul Green and Rick Green because, as they say here in Texas, this is not their first rodeo.

The 44-year-old Rick Green has no prior judicial experience. Although he has a law degree, he has spent most of his adult life as a speaker, media figure, candidate, and political activist, not as a practicing lawyer. He served two terms in the (part-time) Texas House of Representatives from 1999-2003, narrowly lost his bid for re-election, and subsequently has become well known for his association with WallBuilders, David Barton’s for-profit evangelic organization. Rick Green later ran for an open seat on the Texas Supreme Court, losing to Tarrant County District Judge Debra Lehrmann in 2010. (Although Justice Lehrmann is on the ballot again this year, Rick Green chose not to challenge her.) His stated reason for challenging Justice Paul Green is a decision issued in 2015, Texas v. Naylor, that Paul Green didn’t even author. To date, Rick Green has been endorsed by Chuck Norris, David Barton, and Dr. James Dobson.

The 63-year-old Paul Green has served on the Texas Supreme Court since 2004, winning re-election in 2010 without a primary opponent. Prior to that, he served for 10 years on the Fourth Court of Appeals in San Antonio (1994-2004), and prior to that practiced law for 17 years. He is a former President of the San Antonio Bar Association and a member of the prestigious American Law Institute. He is a well-respected judge whose 21 years of service on the bench have been characterized by dignity and decorum. Ironically, his greatest vulnerability as a candidate lies in his low-key, non-partisan demeanor. While he rarely makes political appearances, in 2012, two political science professors from Stanford University rated his ideology as “conservative.” So far, Paul Green’s re-election has been endorsed by Texans for Lawsuit Reform, the Texas Medical Association, and the Texas Tea Party Patriots PAC.

Rick Green’s lack of any prior judicial experience and meager legal experience are not his biggest faults; his well-documented injudicious background is. While serving in the Texas legislature, Rick Green lobbied for, and used his government office to film an infomercial to promote, an ephedra-based dietary supplement called Metabolife, which the FDA banned in 2004 due to thousands of “serious adverse events,” including numerous deaths. Metabolife, whose namesake product was sometimes referred to as “legal speed” (because it contained compounds chemically related to methamphetamine), was founded by two former methamphetamine dealers. Run as a multi-level marketing company, and during its heyday generating hundreds of millions of dollars in sales, Metabolife and its owner ultimately pled guilty to federal income tax evasion. Metabolife’s outside CPA, implicated in criminal tax fraud, committed suicide after an affidavit for a search warrant was unsealed in federal court. One of the founders was convicted of lying to the FDA and concealing evidence of ephedra’s dangers. Amidst the criminal charges, product bans, and more than $1 billion in personal injury claims, Metabolife ended in disgrace, filing for bankruptcy in 2005. Metabolife was, by any estimation, a sordid enterprise that tainted all those who associated with it.

While in the legislature, Rick Green also generated controversy by filming another infomercial in his Capitol office, this time for dietary supplement FocusFactor, a product developed by a friend and business associate of Green, whom Green also represented as an attorney. The FTC later filed a complaint against the maker of FocusFactor for deceptive advertising, for which the maker of FocusFactor paid a $1 million fine to settle in 2004. The FocusFactor episode was cited by Texas Monthly magazine as grounds for Green to be named one of Texas’s ten “Worst Legislators” in 2001.  The nadir of Rick Green’s legislative record, however, was his successful advocacy of early parole for Melvin Cox, a convicted swindler who bilked victims — some of whom were members of his own church — out of over $30 million in a Ponzi scheme. Cox was a longtime business associate of Green’s father (and Green himself), and due to Green’s unusual efforts Cox served less than three years of a 16-year prison sentence. Prior to getting caught, Cox loaned $400,000 to a company owned and controlled by Rick Green. With these unsavory actions, Rick Green brought disrepute to himself and the entire Legislature.

Rick Green’s injudicious actions continued after he lost his legislative seat to Democrat Patrick Rose. Four years after he lost his bid for re-election, Green punched Rose at a polling place on Election Day, leading to a warrant being issued for Green’s arrest. Green turned himself in, was charged with assault with bodily injury, served six months’ probation, and paid a fine (in return, he received a “deferred adjudication”). Green wrote about the incident in his 2009 self-published book, boasting that “It was the first real punch that I had thrown since I was a kid, but I sent him to the ground.” Showing a complete lack of remorse, Green went on to quip, “I guess if I do ever run for office again, we will have a great slogan for the next campaign: ‘He’ll fight for Texas!’” (In fact, his slogan this time out is “Pick Rick.”)

In Green’s race against Judge Debra Lehrmann in 2010, supporters of Lehrmann — including former Texas Supreme Court Chief Justice Tom Phillips--circulated a letter to GOP voters outlining some of the incidents described above. When he lost the election, Green sued Phillips and others for libel. After the defendants filed a First Amended Original Answer documenting all the incidents in detail, Green quickly dismissed the lawsuit “with prejudice” (meaning it could not be re-filed), with no apology or payment of money by the defendants. This is a strong indication that the libel suit was baseless. 

In Elmer Gantry-like fashion, Rick Green has carefully cultivated a pious image among evangelical voters as a patriot and “constitutional watchdog,” espousing a “Biblical worldview.” His radio show, website, and reality TV show tirelessly promote his upright public image, which is very appealing to religious conservatives. Actions, however, speak louder than words. His actions — with regard to Metabolife, FocusFactor, Melvin Cox, Patrick Rose, and the vindictive libel suit — are (to be charitable) the caricature of an injudicious person, ill-suited to serve on any court, let alone Texas’s highest court. Rick Green has repeatedly exhibited bad judgment, associated with shady characters, and displayed a bad temper. One incident might be explained as a “youthful indiscretion” (although Rick Green was almost 30 when elected to the legislature); a series of such incidents forms an unmistakable pattern. In contrast, Justice Paul Green’s lengthy record is solid — and unblemished by scandal or impropriety. Indeed, Paul Green epitomizes the meaning of “judicious.”

Which Green will Texas voters choose for Place 5? Will the judicious candidate prevail? The eyes of Texas are upon you.