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Before Rick Green lost to Judge Debra Lehrmann last week in the Republican primary race for a Texas Supreme Court seat, he pushed back against his opponent's claims that his lack of judicial experience made him unqualified to sit on the state's highest civil court.
In a video posted March 25 on his campaign Web site, Green said, "When you look at the nearly 150 men and women who have served us on the Texas Supreme Court, more than half of them had zero prior judicial experience."
We asked the Green campaign how it had done its research. Kara Green, the candidate's wife and his campaign treasurer, said the campaign relied on the Supreme Court's Web site and short biographies of the justices on the University of Texas Tarlton Law Library's Web site. Both sources list the justices starting in 1836, when the Texas Supreme Court was created after Texas gained independence from Mexico.
Kara Green said the campaign found that 83 out of 148 justices -- 56 percent -- had no judicial experience before serving on the court, but the campaign didn't share their names with us.
We jumped at the chance to explore Green's claim -- and with it, a fascinating slice of Texas history. The early years of the court, when Texas was a republic and not yet part of the United States, brim with stories of adventure and tragedy. In 1842, for instance, Justice Anderson Hutchinson was captured by the Mexican Army during a court session in San Antonio, forced to march to Mexico and held prisoner for months.
We also learned that some of the Supreme Court's most respected members, including Chief Justices Robert W. Calvert and John Hill, had not previously warmed a judicial bench. Neither had a few of the court's most infamous justices, including Don B. Yarbrough of Houston, who resigned six months after being sworn in, in 1977, and eventually served time in federal prison.
However, we couldn't find a definitive list of justices who came to the court without judicial experience. Officials with the Supreme Court and the Texas Supreme Court Historical Society, a nonprofit group that helps preserve artifacts related to the court, said they did not know how many there were. Professor James W. Paulsen of the South Texas College of Law in Houston, founding secretary of the historical society and an expert on Texas legal history, said he did not know of any studies that answered the question.
With Paulsen's help, we did our own analysis using the Green campaign's sources: biographies on the UT library's Web site and the Supreme Court's list of justices.
Right away, we ran into problems because the two lists of justices don't match exactly. For instance, the UT list includes more justices from the Republic of Texas than the court's list does, and it ends in 1986, while the court's list is current.
Second, the biographical information for some early justices was incomplete, preventing us from being able to confidently determine whether they had prior judicial experience. Also, at least one biography of a Republic of Texas justice -- Shelby Corzine -- fails to mention judicial experience that he had in Alabama, according to Paulsen.
After correcting for inadequate information, we wound up removing three justices from consideration.
We also eliminated six more justices who Paulsen said should not be counted: Three because they never actually served on the court or were never confirmed for the job, or because of questions about the legality of their appointment or election. The last three were women whom Gov. Pat Neff appointed in 1925 to hear one case. Paulsen said that if all special judges of this kind were considered justices of the Texas Supreme Court, the list of names would grow considerably. (Those six names do not appear on the Supreme Court's list.)
Bottom line: After making all these adjustments, we found that 65 out of 139 justices on the UT law library's list -- 47 percent -- had no prior judicial experience. On the Supreme Court's list, the breakdown was 62 out of 135 justices, or 46 percent.
Neither amounts to "more than half," as the Green campaign claimed.
One footnote: Though both lists date back to 1836, Paulsen makes a good case for taking those Republic of Texas-era justices out of the lineup, primarily because the court in those days operated very differently from they way it does now. Only the chief justice was a statewide officer; the court's other members were the state's district judges -- trial judges -- who from time to time served as associate justices of the court.
Though Green's campaign included those justices in its tally, we agree with the law professor's argument. And if you remove from the UT list the 22 justices who served only during the Republic of Texas, the percentage of those without prior judicial experience drops to 37 percent. For the Supreme Court list, the percentage would be 38 percent.
The verdict? No matter how we sort the numbers, they show that the majority of high court justices had prior judicial experience.
We rate Green's statement as False.
Texas Supreme Court Web site, “History” page
Tarlton Law Library, University of Texas, “Chronological index to Texas Supreme Court Justices 1836-1986”
Texas Bar Journal, “The Early Supreme Court of Texas and Some of Its Justices,” by Judge Joe Greenhill, vol. 62, no. 7, 1999
Interview with Osler McCarthy, spokesman, Texas Supreme Court, April 9, 2010
Interview with former Texas Supreme Court Chief Justice Thomas Phillips, April 9, 2010
Interview with James W. Paulsen, professor of law, South Texas College of Law, April 13, 2010
E-mail interview with Kara Green, treasurer, Rick Green for Texas Supreme Court, April 10 and 12, 2010
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