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.
And although Perry declared that Rodriguez had donated to Republicans in the past, the only record Rogers could find was a small contribution to a local Republican club shortly before his Texas Supreme Court appointment.
“I think Perry, knowing that he was going to go up against an Hispanic, saw well in advance that he had to do something to shore up the Hispanic vote,” Rogers told TheDC. “He was more concerned with that than he was with conservatism on the Texas Supreme Court.”
Perry campaign communications director Mark Miner countered, telling TheDC that the governor “chooses appointees — particularly judicial appointees — based on their philosophy and temperament and qualifications. Justice Rodriguez was highly qualified, was a conservative jurist, and was an outstanding member of the Texas Supreme Court.”
Though Rodriguez insisted he had “no strong ideological bent,” critics seized on his only major ruling, that an underage plaintiff did not have to inform her parents about an abortion because the difficult conversation could subject her to emotional abuse.
Rodriguez believed the definition of emotional abuse was satisfied by the testimony of the girl whose case he heard. “If I was ever pregnant,” the unnamed girl testified, “I might as well not come home. I’d have no place to stay. I’d have no freedom, no liberties. My car would be taken away. My cell phone would be taken away. I wouldn’t have all the luxuries that I do now.”
That decision, Rogers told TheDC, “struck him [Smith] as obviously wrong and made him decide that if Rodriguez stayed on the Court, it would move to the left.”
During the primary battle that ensued, the Perry-backed Rodriguez spent $558,000, compared with the $9,500 Smith spent. Rogers said most of that paltry sum went to “fliers, signs and pizza.”
“We ran a grassroots campaign. Lots of emails back in the day before spam filters, lots of press releases … 16 to 18 hours a day for three months. We didn’t expect to win until the last few days of the campaign, when we started getting feedback from people that they think we’re going to win.”
“The fact,” reported The Weekly Standard, is that Rodriguez “called himself a moderate, and lost; Smith … called himself a conservative, and won.”
Smith didn’t just win. He won decisively. Many in the Texas Republican establishment were reeling; and Smith, Rogers and the YCT activists who backed them had made an enemy in the governor’s mansion.
Perry was angry. He declined to call and congratulate Smith. He declined to meet with Smith’s team. And when questioned on the upcoming race between Smith and his eventual Democratic opponent, the governor did not endorse the upstart Republican.
Instead, Perry reflected aloud about the shame of unqualified candidates securing political nominations. This less-than-subtle attack pushed the Texas business community to put its money behind Smith’s Democratic opponent, Appeals Court Judge Margaret Mirabal.
Though vastly outspent once again, Smith triumphed, joining the Texas Supreme Court as a reliably conservative jurist.
For his troubles, Xavier Rodriguez collected a nomination to the Federal District Court by Perry’s then-ally, President George W. Bush.
For his challenge, Smith earned the governor’s ire.
Following his upset 2002 victory, Smith would serve on the Supreme Court of Texas until 2005, when Perry, not distracted by a re-election campaign of his own, actively worked to unseat him.
“Perry didn’t just oppose Smith’s re-election,” Rogers told TheDC. “He and [U.S. Senator] John Cornyn recruited Smith’s opponent, Paul Green — a study buddy of Cornyn from St. Mary’s Law School.”
“Paul Green looks like a judge out of central casting. He is a business conservative, though not an ideological conservative, and he ran his campaign like he was Steve Smith, although there is nothing in his record that would have indicated he was a tea-party-flavor Republican.”
And unlike Smith’s previous primary opponent, an Ivy League-trained corporate lawyer from a major city, Green was better able to connect with rural voters.
While Smith’s 2004 campaign — again managed by Rogers — collected more established conservative endorsements than in 2002, Perry’s and Cornyn’s opposition proved too much, and Smith was defeated in the 2004 primary battle. Green went on to win the general election unchallenged.
“As you know,” Miner, Perry’s communications expert, told TheDC, “In Texas the voters made those decision. They made a decision on Xavier Rodriguez and later made a decision on Justice Smith.”
TEXAS RACIAL PREFERENCE RULES
In 2003 the U.S. Supreme Court annulled Smith’s landmark 1996 win against state university racial preferences in Texas.
Today, Rogers tells TheDC, “all of the universities in Texas practice racial preferences in their acceptance policies. Those decisions are decided by the regents, and every regent is appointed by Perry.”
Miner responded that “the governor does not support race being a factor in admissions, and has long been on the record on that issue.” But he did acknowledge that Perry appoints the regents who uphold racial-preference policies.
In June of this year, the Fifth Circuit Court of Appeals declined to hear a new challenge to the affirmative action system in place at the University of Texas.
A source close to the plaintiff in that case told the Chronicle of Higher Education that “the U.S. Supreme Court is a likely next stop. If the Supreme Court accepts a petition to hear the case, the oral argument could take place in the spring, with a decision likely a year from now — smack in the middle of the presidential campaign.”
That would be June 2012.
Rick Perry has made no public comment on that challenge, says Rogers. “Universities are discriminating on the basis of skin color and the government is not speaking out on it. I think that is abhorrent behavior, and it is certainly not conservative behavior.”
When contacted by TheDC, Perry deputy press secretary Lucy Nashed said the governor’s office does not comment on pending litigation. When informed that the matter was not currently before the courts, as Fisher had not yet applied with the U.S. Supreme Court for judicial review, Nashed insisted that “it is still a matter for the courts to decide.”
The legal community has marked the likely Supreme Court review of the Texas racial-preferences case as “the next big case dealing with race in higher education admissions,” writes Joshua Thompson, a staff attorney at the Pacific Legal Foundation.
“It is all but assured that when the Fisher plaintiffs petition for a writ of certiorari, the Supreme Court will be presented with an opportunity to end the diversity rationale altogether.”
Even if the Supreme Court should decline to hear the case, the Texas battle over race will likely become a campaign issue.
Rogers draws his own conclusions about a Perry candidacy in 2012: “I think that Rick Perry is a fiscal, gun-rights and small town values conservative and has it in his bones. But on immigration and racial preferences, he has been a real disappointment to conservatives, and he would continue to be a disappointment as president.”