Both political races were against incumbents of our own party, during which I tried to force some of our friends to address issues about competence that had been long ignored while we took our majority power and status in this county for granted. The second race spawned other activities, organizations and campaigns, as those who attended our initial meetings branched out in different directions to promote our party’s principles in different ways. Although neither of my campaigns ended as I had planned and others had hoped, I am often told that both campaigns, as well as some of the columns I’ve posted here, did some good over these last four years—but, I guess I’ll leave that to others to decide.
What I do know is that there are some within our party who over this time have viewed me, and continue to view me, as a heretic to their respective cause or faction (because, over the years, I’ve seen those emails and heard those comments). And, frankly, I think they’re right—at least from their perspective. It is on that role as a heretic, and on what I think it means for our party, that I want to reflect for a moment.
Whether you run for a judgeship or any other office, you quickly learn that there is an unwritten “script” that you are expected to follow in order to get the right support to win a Republican primary. The script requires expressing fidelity to a cause, a philosophy, an ideology, a religious discipline or church, or a specific leader, depending on your audience. Because certain factions emphasize different priorities, and sometimes even different philosophies or disciplines (e.g., compare and contrast, say, libertarians with congregants of Second Baptist Church), threading this needle while staying true to your own beliefs and telling that truth to voters is always a tortuous, but necessary, task. In any event, few people win a primary by shredding the script.
At some point I decided that somebody needed to talk off-script if we were ever going to address some of the long-term challenges facing this party. The need to deviate from the script was never due to my disagreement with its basic points. Instead, it became increasingly clear to me that the script was stifling our ability to find ways to actually govern using our principles—we had became more obsessed with our allegiance to ideas and orthodoxies, than to the application of our principles in the real world. If we were going to grow our party, win elections and implement our principles, we needed to have a more frank discussion.
Because I wanted this party to better coordinate its management among all its various factions, and because I had no plans to run for office again, I decided a few years ago that I would be that heretic. By not following the script of any group, faction or personality in this party, I have tried to refocus our attention toward the principles and values we share, on the properly limited role of government we want to re-build, how we can better coordinate our party apparatus to get those who agree with us to run for office and win elections, and how our candidates can work within those limits to govern successfully in a manner that promotes our principles and values once they become elected officials.
Quite frankly, the rest of what we commonly discuss in the script (or argue over) is often irrelevant and counterproductive to these matters; those issues are designed more to create wedges among the various factions in order to retain or obtain power and control within the party, rather than to build a party to win elections and govern. So, I decided awhile back that I didn’t want to perform by this script anymore.
Of course, following this course has led me to make virtually everyone in the party mad at me at some point over the last few years: the establishment got mad because I dared to challenge incumbents when it “wasn’t my turn”; moderates got mad when they learned I was socially conservative; libertarians got mad when they learned I supported the war powers granted to the President; Tea Party members got mad because I didn’t support a wholesale coup of Republican leadership after the 2010 election; and social conservatives got mad because I questioned their right to, and use of exclusive control of the party organizations. They all got mad because, to many people who adhere to ideas, disciplines, and platform planks more than to our society’s first principles, my positions and my criticisms have seemed odd, cranky, self-serving, inconsistent and … heretical. To them, I’m the sheep who refuses not only to follow the shepherd, but who seems to refuse to acknowledge that I’m even a sheep and part of a flock that has or needs a shepherd. And, again, they’d be right, because I see the GOP as a political party, not a club, a church, or a flock.
About the only faction within our party from whose script I have never deviated is the business community and its commitment to legal reform in Texas. That commitment was a cornerstone of the modern Republican Party’s foundation in Texas, and I have firmly supported both the judicial and legislative reforms that have been forged over the last 25 years. However, in keeping with my role as the heretic, I want to address a concern I have about further reform, which I hope Republicans will consider during this campaign season—that is, can you get too much of a good thing? To understand my concern, I want to rewind a little—back to the mid-1980s
At that time I was one of many young men and women who had graduated from law school and started practicing law in Texas. Those years saw the climax of two eras in Texas: Democratic, one-party control of Texas politics, including the courthouses; and expansion of tort liability theories and enlargement of jury awards in state and federal courts. Texas Democratic judges were at the forefront of the expansion of liability theories and damage awards, and many lawyers were making amazing sums of money from such awards.
Then, in 1986, the mainspring in the system came loose with the decision in Texaco v. Pennzoil. The decision seemed to rest on an incorrect interpretation of New York law by a Texas judge, and led to an award of billions of dollars, which shocked the nation. When the requirement of an appellate bond was upheld by the U.S. Supreme Court, Texaco had to seek bankruptcy protection because it could not pay for the bond. Ultimately, the case settled and certain attorneys made so much money that the name of a football field in Austin eventually was purchased with some of the personal wealth accumulated from that fee.
But the attention that the Pennzoil decision drew was the beginning of the end of that era. It led to a 60 Minutes TV investigation that uncovered corrupt relationships between certain Plaintiffs’ lawyers and certain members of the Texas Supreme Court. That led to the sitting Chief Justice’s abrupt retirement to begin a crusade to change the way judges were elected in this state. It led to the appointment of the first Republican Chief Justice since Reconstruction and to a series of elections, culminating in the elections of 1994 and 1996, through which the Republican Party gained control of the statewide judiciary and courts in major metropolitan areas, including Harris County. It changed the way governors would evaluate candidates for judicial appointments. By the time George W. Bush left for Washington, most observers agreed that one of his great accomplishments was the high standard he had set and met for his judicial appointments.
All of these post-Pennzoil improvements to the judiciary changed the way the nation, including the business and legal communities, looked at the Texas legal system. No longer considered a haven for frivolous lawsuits by the early 2000s, scholars and practitioners considered Texas courts to be leaders in moderate decision-making consistent with mainstream American legal precedents.
While these changes to the judiciary occurred, legislative changes were also adopted to address the abuses of the old system. Venue and comparative-fault laws were changed to make it harder to impose large awards on minimally responsible parties, and to force them to defend themselves in communities that had no relationship to the parties or the dispute. Liability laws were amended to attempt to create a closer fit between responsibility and fault across many commercial activities. Laws promoting the use of arbitration and mediation were adopted or strengthened, which reduced the risk of jury trials and awards by promoting settlement or less-expensive dispute resolution processes. Then, in the early part of the last decade, major tort-reform measures, including threshold evidentiary requirements for suits against professionals of all sorts, including doctors, were passed to reduce the exposure of these professionals to frivolous lawsuits. Again, many of these measures, separately and combined with judicial reforms, improved the business climate in this state.
However … and there always is a “however” to such reform movements … no state that had suffered from tort liability and damage award problems (which, having started in California in the 1950s, were common throughout the U.S. by the 1980s), adopted the breadth of the measures adopted in Texas. And, the effects have been obvious to anyone willing to look at them objectively:
- In many urban counties in this State, you now can here a pin drop in courthouses that used to be bustling with activity.
- Many disputes involving real harm were now either too expensive to take to court, subject to arbitration, or had been legislated away.
- Because fewer commercial cases were being tried, fewer commercial cases were being reviewed on appeal. That meant that fewer appellate decisions existed to give guidance to lawyers as to how to advise their clients as to future possible conduct.
- In the meantime, statutory schemes that created dispute-resolution processes, like those for residential construction and windstorm insurance, often merely delayed resolution of legitimate disputes and payment of legitimate claims for years.
To note all of these consequences is not to argue for a return to the old Texas system—no, I opposed that system and supported its reform, and I still do. In fact, I believe that all but one of the reforms passed in the last session were good for the system, and even that one reform will be an improvement for many parties locked in large disputes. But I think it is at least fair to ask those who have turned reform into a never-ending crusade to pause for a bit and study what they’ve done; not just to look at data, but to actually and comprehensively study the consequences for the entire system and the citizens and businesses that depend on it.
Moreover, we need to think about the long-term consequences of our constant attacks on the common-law, trial-by-jury system. Remember, that when we attack the jury system we attack each other, because we are part of the jury pool, too. It’s true, statistically, if you gather enough separate groups of 6 or 12 people in enough trials, you will get aberrant decisions—and TV and Internet coverage tends to distort the number and significance of these aberrations; but, for the most part, over the centuries, the jury system has served our neighbors and our law well by subjecting the application of the law to the cumulative wisdom of our neighbors, and by requiring our neighbors to serve the community. We can not continue to disparage the jury system, and expect people to want to serve on juries and jurors to make correct decisions. If we conservatives value assimilation and local governance, we must stop our attack on jury service and the jury system, and instead, focus our efforts on getting good people to again serve their communities by serving on juries.
In the end, we should ask whether we have created a system that, at some point in the future, will stop holding people responsible for the consequences of their behaviors and stop creating appropriate rules to guide our future conduct? If so, then we need to look in the mirror and ask ourselves whether this would be a system that is consistent with our principles and values. If the answer we hear is “no,” we need to discuss how to address this problem without destroying the good that has been done over the last 25 years.
So, there you have it—I’ve now made every faction in our party mad. But, I hope that by raising these off-script issues, like the proper extent of legal reform, we will re-visit some of the scripted assumptions we Republicans have lived by for too long and, then, determine whether our script is really consistent with our principles and values. If not, let’s work together to govern based not on a script, but on our principles and values.