Texas Gov. Rick Perry’s clashes with conservative activists are nothing new: A bitter battle over racial preferences and liberal judges has raged in the tight-knit world of Lone Star politics since 2001.
In the days following George W. Bush’s election to the presidency, the newly minted Gov. Perry had a chance to prove his mettle by nominating justices to fill two Texas Supreme Court vacancies.
Following Ronald Reagan’s unsuccessful 1987 nomination of Robert Bork to the U.S. Supreme Court, conservative activists had been awakened to a new kind of politics — the politics of judicial nominations — and Perry’s selection of Xavier Rodriguez in Texas only made them angrier.
Born in San Antonio, Rodriguez was educated at Harvard before returning to earn his law degree in his home state and practice law with Fulbright & Jaworski, where he became a partner. Though described by one opponent as “a decent lawyer and a decent guy,” the young attorney’s nomination forced his experience and beliefs onto Texas conservatives’ collective radar.
And when conservative lawyer Steven Wayne Smith picked up his newspaper and read that Rodriguez named the reliably liberal Supreme Court Justice David Souter as his judicial role model, any ideas Gov. Perry may have had of an uneventful appointment went out the window.
A half-decade saga began that day which, by its conclusion, was a Texas tale of racial politicking, an underage abortion ruling and an executive vendetta.
When he was sworn in on Dec. 21, 2000 following Gov. George W. Bush’s election to the presidency, Perry already had his eye on Election Day 2002. Perry knew he would face one of two formidable Hispanic candidates vying for the Democratic nomination in that race: Former Texas Attorney General Dan Morales or Mexican-American businessman Antonio Sanchez.
So in 2001, when Gov. Perry nominated the inexperienced Rodriguez — a casual Democrat of Latino descent — to the Texas Supreme Court, Smith suspected a game of racial politics was playing out. The voters, it would turn out, agreed.
Supreme Court judges are elected in Texas, and those elections are intensely partisan. Successful candidates serve for six years; but when a justice vacates a seat mid-term, the governor has carte blanche to appoint a replacement, who serves unchallenged until the next even-year election date.
With the nomination of the self-described moderate Rodriguez, Smith saw an opportunity to push the Court to the right. He recruited Young Conservatives of Texas (YCT) activist David Rogers to manage his 2002 Republican primary challenge to Rodriguez and got to work spreading the word.
Smith and Rogers had a history of fighting racial politics together. Rogers was a co-plaintiff in 1996 when Smith challenged racial preferences in Texas college admissions. The case came before the U.S. Court of Appeals, Fifth Circuit, where Smith persuaded a judicial panel to do away with the University of Texas School of Law’s race-conscious admissions policy.
That victory made a name for Smith and forged strong connections between him and the grassroots conservative activists of YCT. So when Smith brought his concerns over Rodriguez’s appointment to Rogers’ attention, Rogers was quick to sign-on.
“It’s one thing to play racial politics when you’re appointing someone to the Colorado Gaming Authority,” Rogers told The Daily Caller, “but [Smith] feels strongly that the Supreme Court of Texas is a place where that shouldn’t play a part in the appointments. … We accused Perry of playing racial politics repeatedly during the course of the campaign.”
As it turned out, neither side of that 2002 campaign was shy about pointing to strong suspicion that, as The Weekly Standard reported, “beneath the surface, this year’s key elections in Texas are all about race.”
That sort of complaint, of course, only gains traction with voters if a candidate is unqualified. Rodriguez had never argued a case in front of any court of appeals prior to his appointment. And records showed that the former casual Democrat never actually applied for the Supreme Court slot to which Perry appointed him: The governor chose him after he applied for a seat on a University of Texas board of regents.