Electoral shenanigans


How bad does one’s political blunder have to be to not only force the end of a previously promising gubernatorial bid, but to impact a presidential race almost two decades later? Very, very bad indeed.

Many here in Texas have distant and dusty memories of the West Texas oilcatter and Aggie, Clayton Williams, who ran unsuccessfully for governor against Ann Richards in 1990. His campaign was going fairly well until he started lobbing rape and drinking “jokes” against his opponent who had publicly acknowledged struggles with alcohol.


Perhaps almost as unforgivable as his tasteless broadsides against Governor Richards, Claytie also made headlines when he refused to shake her hand before a debate in Dallas.

Well, John McCain‘s army of vetting wizards apparently failed to uncover these obscure political nuggets in Claytie’s past when they scheduled a fundraiser for Senator McCain at Claytie’s house in Midland. Senator Obama‘s team was quick to point out Claytie’s unsavory past, and McCain rescheduled the fundraiser, but decided to keep the $300,000 or so already raised with Claytie’s assistance.

Thx to the Politico’s Jonathan Martin and Texas on the Potomac

President, Senator, Governor, GeneralWhat a lineage

Sixty-seven years ago today, Sam Houston‘s only surviving son–Andrew Jackson Houston–was sworn in to the U.S. Senate at the ripe old age of 87 to fill the vacancy left by the death of U.S. Senator Morris Sheppard.

Andrew’s father was sworn in as one of Texas’s first two senators almost one hundred years earlier.

Incidentally, General Houston’s colleague in the Senate was none other than the Republic’s first Chief Justice to actually preside over a session of the Texas Supreme Court: Thomas Jefferson Rusk. While Chief Rusk was, technically, Texas’s third Chief Justice, the first two Chiefs never actually convened a Court session during their eventful tenures (Texas’s first Chief Justice, James Collinsworth, committed suicide by jumping from a ship in Galveston Bay while on the ballot as a Republic presidential candidate). See James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 248-53 (1986).

While the father served in the Senate for some thirteen years from February 21, 1846, until March 4, 1859; the son’e tenure was fated to be much shorter, lasting only twenty-four days until he died on June 26, 1941.

Thx to Texas on the Potomac

Good night and good luck

You hear Keith Olbermann go off on one of his unhinged tirades, keep in mind that the insanely-mustachioed Geraldo impersonator pictured above is the man you’re listening to.

Have to admit though, he and Dan Patrick were probably the best sportscasting team ever to hit the airwaves.

Thx to Deadspin and Flash Sports Tonight


Few who read this blog may be old enough to remember Carole Keeton Strayhorn Rylander McClellan’s 1986 run for Congress, but I do.

Back in ’86, Carole “Keeton McClellan”–as she was then known–made enemies of her Democrat compatriots when she abruptly resigned from the State Board of Insurance with a full three years left on her term, and promptly switched parties so that she could run against the revered and longserving District 10 congressional representative, J.J. Jake Pickle. It wasn’t so much that people begrudged her ambition, but that she would so brazenly and inelegantly attempt to displace an LBJ-era icon in Central Texas politics who was literally beloved by his constituents.

In fact, so deserving of his constitutents’ affection was Congressman Pickle that I remember a tale told at his 2005 funeral that, throughout his years in Congress, he kept his home telephone number listed in the Austin phonebook so he was always—literally—just a phone call away from those who elected him.

Well, the Washington Times reports today that, ‘lo and behold, Mama Carole may have had something to do with her son’s recent partisan about-face with his former boss, 43.


Lil’ Scotty’s on the left.

Thx to the Washington Times and the Austin Chronicle

Seventh Circuit Judge Richard Posner and his fellow University of Chicago Law School Professor William Landes have authored an article entitled, “Rational Judicial Behavior: A Statistical Study,” which devises a methodology to rank the forty-three Justices who have served on SCOTUS since 1937 from most conservative to least.

Their conclusion?

Four of the five most conservative [J]ustices to serve on the Supreme Court since Franklin Roosevelt [presidential term], including [Justices] Roberts and Alito, are currently sitting on the bench today.


I always find it troubling when commentators (even ones as undeniably accomplished and talented as Judge Posner) attempt to assign political motives (i.e., Legislative or Executive branch motives) to the judiciary because I remain convinced that political labels like “conservative” or “liberal” are ill-suited to describing judicial philosophy. Originalist jurisprudence is not a per se politically conservative concept just as viewing foreign law as persuasive authority is not a direct descendant of politically liberal thought.

Judge Posner and Professor Landes describe how they classified the conservativeness of the Justices by reasoning “[t]hat characteristic is usually proxied by the party of the President who appointed the judge—if it was the Democratic Party the judge is deemed ‘liberal’ and if the Republican Party ‘conservative.'” See Landes, William M. and Posner, Richard A., “Rational Judicial Behavior: A Statistical Study” (April 2008 ) at 2. U of Chicago Law & Economics, Olin Working Paper No. 404 Available at SSRN: http://ssrn.com/abstract=1126403.

While this may be a seemingly rational way to crudely guess the favored political affiliation of a Justice (particularly in the modern, post-Roe era), one need look no further than Justices Stevens or Souter–both appointed by Republican presidents–for evidence controverting this assumption.

Thx to How Appealing, U.S. News & World Report, and the Legal Theory Blog

Legally sufficient

I just posted a response to a thoughtful comment made regarding my earlier jeremiad aimed at Texas Watch‘s recent report entitled, “In the Shadows: A look Into the Texas Supreme Court’s Overuse of Anonymous Opinions.” Of course, after my recent discourse with someone purporting to be Adam “Bulletproof” Reposa, pretty much anything is–by comparison–civil, restrained, and respectful.

Please permit me to plagiarize myself and reprint some of my response here as I think it bears directly upon the merits–or lack thereof–of the most recent Texas Watch “study.”

[O]ne of the main thrusts of my argument is that the very jurisprudential purpose of a per curiam opinion negates the central tenet of Texas Watch’s argument that per curiams are being inappropriately used to dispose of legally complex cases that should be issued as an authored opinion.

Instead, I posit that the more likely cause of the undisputed rise in per curiam disposition of cases is attributable to the Court’s desire to clear its undenied backlog of cases—of which Texas Watch has previously complained. My point is that it wholly undermines what little credibility may be initially afforded Texas Watch to knock the Court for utilizing the only determinative tool at its disposal to address an urgent problem of which Texas Watch has publicly ridiculed the Court. Texas Watch can’t have it both ways.

To believe otherwise is not just to merely accuse the six Justices who vote to issue a given per curiam opinion of being complicit in flouting the very appellate rules they are charged with drafting, but it is to accuse all nine Justices of intentional malfeasance because every such per curiam opinion is authored en banc. No serious observer or critic of the Court would accuse every single Justice of being either so incompetent or malicious as that. That is why such claims cannot be taken seriously.

However, if your objection is really that I didn’t refute the individual merits of the fourteen cases incorrectly cited by Texas Watch in their report, let me indulge you.

At the outset, however, one should note that the political agenda (as opposed to legal analysis) of Texas Watch is revealed by their “[i]mpact” headings under each case’s discussion in the report. The political impact of any particular decision is, of course, constitutionally beyond the purview of the Court to decide. Indeed, that is why Texas has a legislative branch. But if the legal merits (or lack thereof) of a case demand a certain result, that result can very well have political impacts that are distasteful to the public at large. That is precisely how the system is supposed to work; so that the public can then go to their elected representatives in the Legislature and demand a change in the law to remedy the odious effect. But it is not constitutionally up to Court to masquerade as a super legislature. To assume otherwise is to reveal a basic and fundamental misunderstanding of not only remedial civics but of the constitutional function of the judicial branch.

Now to the cases, none of which are even vaguely legally controversial on their merits.

In In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 630 (Tex. 2007) (per curiam), the Court hinged its holding on its earlier, authored opinion in In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Indeed, that is likely why this case was issued per curiam, because the central legal issue had already been decided by a previous, authored opinion.

In Schaub v. Sanchez, 229 S.W.3d 322, 322 (Tex. 2007) (per curiam), the “only theories under which the patient could recover were dismissed by agreed order in the trial court.” Error was not preserved by agreement of the parties; clearly a case hugely appropriate for per curiam disposition.

In Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 331 (Tex. 2006) (per curiam), the Court again referred to two earlier, authored opinions that resolved the determinative legal issue on appeal. See Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401-02 (Tex. 1998 ); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 723 (Tex. 1990.

In In re DuPont de Nemours & Co., 136 S.W.3d 218, 227 (Tex. 2004) (per curiam), the Court reversed a trial court’s discovery order as to one subset of withheld documents. While this opinion was a little more legally complex than those discussed above, it is far more likely that the Court issued it per curiam because it dealt with only a pretrial matter and involved some 530 documents out of the more than 55,000 pages produced.

In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 72-73 (Tex. 2004) (per curiam), the Court held that driving a company truck to the house of the employee’s girlfriend, and then later some forty miles away to a night spot was a “material deviation from any implied permission he may have had to use the vehicle.” The facts aren’t even close here on the scope of the permission involved—hence the per curiam disposition.

In Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 149 (Tex. 2003) (per curiam), the Court again relied upon a previous, authored opinion’s holding that “mere incorporation of … [a] definition” from another statute “does not by itself manifest a clear legislative intent to waive immunity.” See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003).

In Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 213 (Tex. 2003) (per curiam), the Court referenced several prior, authored opinions each of which that held a common carrier is an entity whose “business … is public transportation,” but not one to whom “such transportation is ‘only incidental’ to its primary business.”

In Tiller v. McLure, 121 S.W.3d 709, 714-15 (Tex. 2003) (per curiam), the Court held that a series of contentious, callous, and unprofessional contacts by the petitioner regarding two commercial construction contracts– while reprehensible–was not so atrocious as to qualify as “extreme and outrageous.” This one involved a little more legal analysis and might have been a somewhat closer question than those discussed above, but was clearly not so outside so the purview of the Court as to be labeled an “inappropriate” use of a per curiam opinion.

In Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 nn.7, 8 (Tex. 2003) (per curiam), the Court relied upon a multitude of previous, authored opinions that plainly held “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence,” and “an inference stacked only on other inferences is not legally sufficient evidence.” No great jurisprudential stretch that.

In In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 208-11 (Tex. 2001) (per curiam), the Court vacated a pretrial consolidation order after relying upon the diagnostic framework established by a previous, authored opinion. In re Ethyl, 975 S.W.2d 601 (Tex. 1998 ). Once again, a pretrial dispute, the merits of which were plainly governed by a prior, authored opinion.

In Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 807 (Tex. 1999) (per curiam), the Court again relied upon several prior, authored opinions that established the record did not support the appellees’ contention that the conduct complained of originated and was then “transported into the place of employment from [their] private or domestic [lives],” or that the appellant intentionally injured the appellees.

As with many per curiam opinions, the Court in In Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156-57 (Tex. 1999) (per curiam) appeared to have rejected the proposed application of a well established recovery doctrine to novel yet simple fact-pattern.

In In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (per curiam), the Court hardly stretched its jurisprudential limits by relying upon a Fifth Circuit Court of Appeals case and the seminal authority on contracts that the mere fact the real parties in interest possessed “no bargaining power or ability to change the contract terms” is not, in and of itself, legally “automatically unconscionable or void.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Security Pac. Corp., 961 F.2d 1148, 1154 (5th Cir. 1992) (citing 6A ARTHUR CORBIN, CONTRACTS § 1376, at 20-21 (1962) & 7-9 (Supp. 1991)).

Finally, Texas Watch bemoans a per curiam opinion which is only six lines long. See Am. Home Assur. Co. v. Stephens, 982 S.W.2d 370, 370 (Tex. 199 (pre curiam). Moreover, the opinion itself is an answer to a certified question from the Fifth Circuit Court of Appeals, and defers to the lengthy legal analysis contained in a Fifth Circuit dissent—hence it’s brevity (and per curiam nature).

That’s it, that’s the sum total of juristic outrage of which Texas Watch complains. While Texas Watch has every right–and to the extent that it may even be correct–to complain of the political effect of these decisions, Texas Watch’s ire is misdirected. The legal bases for these per curiam decisions are sound and entirely appropriate for per curiam disposition. Texas Watch would do far better to publicly harangue and chastise the true arbiters of the perceived misery against which Texas Watch rails—the Texas Legislature.

Just don’t masquerade as legal experts presenting a sober and thorough analysis of the Court’s recent per curiam practice seriously testing what may indeed turn out to be a fair thesis. Instead, Texas Watch has manifestly either been incapable of attracting or hiring a seasoned appellate expert to conduct such an analysis, or they have more likely just not bothered to even attempt such an endeavor. Neither motive is a fair or rational basis to impugn the professional integrity and legal acumen of those who have garnered the electoral support of a majority of the voters in our Great State.

Thx to Lefty


SCOTX Blog has a great post today regarding the latest screed from Texas Watch in their ever-vigilant quest to find new ways to sound imbecilic (my description only).

Texas Watch has apparently prepared a new “report” which purports to shine the light of truth on SCOTX‘s “penchant for secrecy” by “using per curiam opinions inappropriately to avoid accountability for some of the tough decisions.

Before I delve into the nonexistent merits of Texas Watch’s revelation, there is something curious going on here. Both the Houston Chronicle and the AP have published news accounts describing a report that Texas Watch has not even yet issued. Does anyone else find it odd that supposedly objective news outlets would be writing articles concerning PR dossiers that haven’t even been released to the public yet?

As to the merits, as any lawyer knows (which perhaps explains Mr. Winslow‘s ignorance), per curiam opinions are a remedial tool used by SCOTX (and the courts of appeals for that matter) to more quickly dispose of cases that require only relatively straightforward error correction. See Hon. Robert H. Pemberton, One Year Under the New TRAP: Improvements, Problems and Unresolved Issues in Texas Supreme Court Proceedings, in State Bar of Tex. Prof’l Dev. Program, Advanced Civil Appellate Practice Course B, B-18 (1998).

In fact, SCOTX first began to increase its use of per curiam opinions as early as 1925, when–not coincidentally–the Court was suffering from such a severe backlog of cases that a separate judicial body was created to assist in the mass adjudication of pending cases. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST. MARY’S L.J. 115, 117 (1992) (describing how, beginning in 1925, the Texas Supreme Court began to increase its issuance of per curiam opinions, “perhaps as a corrective device”); see also Act of Apr. 3, 1918, 35th Leg., 4th C.S., ch. 81, 1918 Tex. Gen. Laws 171 (made effective April 3, 1918, and reestablishing the Texas Commission of Appeals); Tex. S.J. Res. 8, 49th Leg., R.S., 1945 Tex. Gen. Laws 1043 (adopted at election held Aug. 25, 1945 eliminating the Texas Commission of Appeal).

Accordingly, per curiam opinions are used to more efficiently dispose of those cases upon which there is little or no disagreement, and which present fairly straightforward legal issues. In other words, if the Court is issuing more per curiam opinions, it is probably more accurately an indicia of an increased determination to reduce the Court’s backlog (previously bemoaned by Texas Watch) of appropriate cases than it is a Machiavellian attempt to shroud the deciding members from public scrutiny.

To the contrary, the use of such a jurisprudential mechanism actually INCREASES the scrutiny upon the Justices because a per curiam opinion is–by definition–issued by the entire Court. Every Justice is given equal praise/blame for the failings or triumphs of the decision, as compared to an authored opinion which can be attributed only to the majority of Justices who sign it.

Moreover, because the only type of case that is appropriate for per curiam disposition is one in which the legal issues are clear, straightforward, and non-controversial, Winslow’s claim that “[a]ll too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters” can simply not be taken seriously. Any decision likely to cause controversy or which demands the Court clarify a muddled or disputed area of the law is precisely the type of opinion least likely to be issued per curiam. And, as explained above, a per curiam opinion subjects every single Justice on the Court to elevated scrutiny, not just the authoring few.

Again, any basic analysis of the different types of opinions SCOTX is empowered to issue is a bit dry and legally complicated so I can’t really fault a group of non-lawyers (save for the one four-year lawyer Texas Watch recently hired) for failing to comprehend the finer points of the practice.

Most interesting to me is SCOTX Blog‘s noting that the official statistics published annually by the Office of Court Administration track the per curiam opinions written by each Justice (see page four of the .pdf file).

While it is of course obvious that a single Justice must be logistically tasked to author a per curiam opinion, the identity of that Justice should remain anonymous because it is the Court as a whole that is issuing the opinion. The fact that OCA tracks and publishes this data, tying these opinions to the chambers which issue them (by number of opinions only) is more troublesome than any flotsam trotted out by Texas Watch.

Thx to SCOTX Blog

The dynamic duo

Today, Senator John McCain gave a 3,383 word speech expounding upon his judicial philosophy, but as Jonathan Martin keenly observed, this picture speaks louder than any soundbite in the Senator’s speech.

Thx to Jonathan Martin

Craig Ferguson turned out to be a hit at this year’s White House Correspondents’ Association dinner, poking fun at everyone, but tastefully so.

President Bush‘s speech was a retrospective of his past seven appearances at the dinner, some of which were pretty funny. My favorites were Laura Bush’s 2005 quip that “9:00 o’clock and Mr. Excitement here is sound asleep … and I’m watching Desperate Housewives,” and Bush’s 2001 assurance that he held no hard feelings against his brother, the then-Governor of Florida, for the Florida recount (see below).

Ferguson had some particularly good zings against the New York Times, who was very publicly absent from the soiree:

They thought this dinner undercut the credibility of the press, I thought Jason Blair and Judy Miller took care of that.

* * *

Shut the hell up NY Times you sanctimonius whining jerks!

Overheard at the party was Bunny Ranch owner Dennis Hof on Senate Majority Leader Harry Reid I know Harry very well. He’s a good guy.” I’m sure the Senator heartily appreciated that vote of confidence.


* * * UPDATE * * *

After eating at White Castle and escaping from Guantanamo Bay, Kumar apparently attended the WHCA dinner as well.

Hippy lettuce

Thx to Shenanigans, Fishbowl DC, and TV Newser

Rise it has

I have yet another book to add to my summer reading list, Steven Teles’s The Rise of the Conservative Legal Movement.

Professor Zywicki has a great review of it over at Volokh.

Thx to Volokh

Mano y Mano

The New York Post has a new flash game that allows you to duke out the eventual Democrat Party nominee.

It is interesting to note that I’ve played as both candidates, and it seems that Hillary is far more accurate in landing her punches than Obama is in landing his.

Thx to the NY Post

Queen Kim

The sky is the limit for first-term Austin City Councilwoman Jennifer Kim. When it comes to allocating the $260,000 a year with which her office is endowed (nominally to pay for the member’s salary and that of their staff), Councilwoman Kim has appropriated generously.

Oh, not on salaries mind you or other public expenses that wouldn’t raise the eyebrows of Austin’s taxpayers, but on questionable items such as:

$921 for a three-night stay at the W hotel in Manhattan
$700 for a membership to Continental Airlines’ ‘President’s Club’
$550 for a Sharper Image air purifier
$400 for 20 copies of Discover Your Strengths
$232 in Crane and Company brand stationary
$86 in Vera Wang barware
$67 for a Steam Wizard from The Sharper Image
$59 each for “Executive Rollerball” pens from The Sharper Image.

Using taxpayer dollars to buy designer barware, and a stay at a trendy Manhattan hotel? Has she been reading the Pedernales Co-op’s guide to fiscal responsibility?

When asked about these expenditures by a local reporter, Kim defended her acquisitional judgment by saying, “I spend what I need to out of my budget to be able to do the job. And in the beginning, it was a brand new office, a brand new staff, there were a lot of things that we needed.”

Like Vera Wang barware. Riiiiight.

I’ll give her the benefit of the doubt on the pens (my Mont Blanc makes those look reasonable), the stationary, the suit steamer, the travel club membership, etc., but–despite being an Aggie–she should know enough not to use public funds to buy any of these items from expensive vendors, if at all.

This is not the first example of Kim’s poor judgment however. In early 2007, she created a furor by indignantly attempting to bypass airport security at ABIA, claiming nonexistent VIP status. When informed her status as a member of the Austin City Council conferred her no special security rights, Kim said “I didn’t know it was a [Transportation Security Administration (TSA)] issue, … I thought since it was our airport and we own it, and if we are pre-cleared, we could get through.”

Uh, ask anyone who has flown since 9/11 if they are aware TSA runs airport security.

As reported elsewhere, Kim’s antics have made her hard to work with, running through at least three executive aides since she took office in 2005.

Her airport shenanigans have even given her electoral opponent a campaign slogan, “I’ll be happy to stand in line with you at the airport anytime.”

Thx to KVUE’s Political Junkie, the Austin Chronicle, News 8 Austin, and PinkDome

The Man

We’ve been unabashed in our admiration for former Whitehouse press secretary Tony Snow. Well, after his public service stint in the Pennsylvania Avenue crucible, he has landed at CNN today as a commentator. Congratulations to Tony Snow, and here’s hoping his health continues to improve.

See the full press release here.

* * * UPDATE * * *

Below see an amusing exchange between Snow and Bill O’Reilly regarding the possibility of Snow’s employment by Fox rival CNN.

More upsetting news is this afternoon’s report that Snow has had to cancel several speeches today due to illness. Our thoughts and prayers are with he and his family.

Thx to FishBowl DC, TV Newser, KXLY, and Shenanigans


If you’d just spent $17.2 billion on something, wouldn’t you need a drink too?

Well, Reuters–which recently parted with just such a sum in its acquisition of Thomson West (aka Westlaw)–is hosting one of many pre-parties for this week’s White House Correspondents’ Association dinner. Some of the drink specials that will be available at the bar include:

Hillary’s Bosnian Bull-shooter

If you’re hoping to get intoxicated from this drink, run for cover. A single shot will keep you honest.

Distilled water imported from Tuzla.

Barack O’Bomber

More popular than ever with the younger set, the O’Bomber is sure to bowl you over. For a truly religious experience, polish it off and order another. You’ll be singing its praises – and Wrightfully so.

Vodka, Jagermeister, Red Bull energy drink with a lime wedge.

The Senior Moment

This one packs such a punch that you’ll have trouble distinguishing one extremist group from another.

Scotch on the rocks, no twist.

Thx to Shenanigans


I know it is enormously unwise to re-open this can of worms, but here it goes.

The 2000 Presidential Election is back in the news with the announcement that HBO is planning the release of a film dramatizing the 2000 recount , and Vice President Gore‘s recent interview on 60 Minutes in which he reflected:

I strongly disagreed with the decision, but to ascribe low and petty partisan motivations to the five justices who were in the majority, it doesn’t feel right for me to do that.

Just last week while speaking at UVA Law School, Justice Scalia tersely responded to a student’s question, “[h]ow do you reconcile your calls for judicial restraint with the court’s actions in Bush v. Gore,” by chiding, [o]h, get over it … [d]o you really think we weren’t going to grant cert.?”

In light of all the recent and forthcoming brouhaha, I just wanted to quote the Court‘s actual holding in Bush v. Gore, 531 U.S. 98 (2000), namely that:

Seven Justices of the Court agree that there are [equal protection] constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy …. The only disagreement is as to the remedy.

Id. at 111. Because the majority deferred to the Florida Supreme Court’s own holding that all electors had to be selected by December 12, 2000 (the date Bush v. Gore was handed down), the Court held no recount procedures that would not be violative of the Equal Protection Clause could be put in place in time to comply with Florida’s own laws. Id. at 110.

Therefore, I sill posit that the “low and petty partisan motivations” Vice President Gore ascribes to the majority must also be attributed to the Florida Supreme Court, to which the majority deferred. Moreover, there were actually seven Justices (one of whom was nominated by Mr. Gore’s own administration) who agreed the varying counting standards employed by the many counties in Florida did not secure the equal protection rights of voters in those counties.

Thx to 60 Minutes, Newsbusters, Shenanigans, and Above the Law

His rod

If you see a naked woman in the reflected image in Vice President Cheney‘s sunglasses, you are: (1) an idiot; and (2) not an angler.

See it now?

Apparently, a lot of people thought the Veep was cavorting with a scantily clad lady instead of casting his fly rod.

* * * UPDATE * * *

At last night’s 64th Annual Radio and Television Correspondents Dinner, Vice President Cheney began his speech by donning his now-famous hat and sunglasses, and quipped:

You’d be amazed how at how many guys want to go fishing with me these days.

* * *

The most common question [I get asked] is what lure was I using?

* * *

That’s the last time I go fishing with an outfitter called the “Emperor’s Club VIP.”

He also got in a subtle shot at Senator Obama, observing that the crowd at the dinner were not ones to look down on a “bitter man who clings to his guns.”

Thx to Newsbusters, McClatchey, and CSPAN

This is the second in our long-running if ill-advised and rarely-updated series of random, funny pictures:

Library moves

“David Broder Is Never Too Old To Pick Up Chicks Outside The Local Library”

Or so says Fishbowl D.C. What David Broder was actually doing outside this library was interviewing Pennsylvania voters regarding the upcoming Presidential primary.

Thx to FishBowl D.C.


We have diligently followed the recent spate of press reports stemming from “research” conducted by Texas Watch purporting to show massive and improper opinion delay at SCOTX. Unlike Texas Watch, we at SMSB do not pretend to be nonpartisan, we are admitted and unabashed fans of SCOTX and its jurisprudence.

That said, we will be the first to acknowledge that SCOTX opinions take an exceedingly long time to issue, and any justification for this less than impressive pace (the Office of Court Administration (OCA)‘s estimate for the average time taken to issue an opinion last term from the petition filing was 700 days) is hard to defend in light of SCOTUS‘s ability to turn around most–if not every–opinion it issues well within two years from the date of filing (by way of example, the oldest opinion issued thus far during the Court’s present term was handed down 557 days after cert. was filed, and the oldest opinion issued during the Court’s 2006 term took 703 days to issue from cert. filing to opinion issuance). One explanation for this discrepancy is that each SCOTUS Justice has double the amount of law clerks in his chambers than do SCOTX Justices.

Recently, the Executive Director of Texas Watch, Alex Winslow (who is not a lawyer but does possess a bachelor’s degree in government), responded to an excellent op-ed penned by the Court’s Staff Attorney for Public Information that called into question the methodology employed by Texas Watch in conducting its research. Specifically, the Court’s staff attorney pointed to:

One watchdog—using numbers and a methodology it did not explain—calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days—about 40 percent of what the watchdog stated it was.

The organization’s calculations determined the court took an average of 852 days last term to resolve cases from the filing to the opinion. OCA determined that figure was 700 days.

In his op-ed, Mr. Winslow responded to the inaccuracies in his group’s report by stating:

[SCOTX’s] taxpayer-funded spokesperson has attempted to assail our methodology and questioned our motives (“Court watchdogs getting facts wrong,” Thursday). Clearly, the [C]ourt is uncomfortable with the public scrutiny it has received in recent months.

* * *

Our research found that it took an average of 28 months for the [C]ourt to resolve a single case. The [C]ourt’s spokesperson claims it was 23 months. We stand by our research as accurate, but no matter how the [C]ourt wants to slice and dice the statistics, the bottom line is that it takes far too long for the [J]ustices to complete their business.

Perhaps Mr. Winslow can indulge us a little more “slic[ing] and dic[ing],” but the data relied upon by the Court’s “taxpayer-funded spokesperson” was not his own, but the OCA’s, which is the state agency statutorily mandated under Chapter 72 of the Texas Government Code to keep accurate statistics regarding the efficiency of the Texas judicial system. See, e.g., TEX. GOV’T CODE ANN. § 72.082 (Vernon 2005). And the “spokesperson” to which Mr. Winslow dismissively refers is a former appellate attorney–something Mr. Winslow has never been–who has long served the Court both ably and faithfully despite being woefully underpaid and misguidedly rooting for an obscure basketball program in the Pacific Northwest.

The OCA has no vested interest in shading the data one way or the other, their only concern and statutory duty is to accurately convey the current statistical state of the Texas courts to the branch of government that funds them, the Texas Legislature. What accountability infrastructure is in place to ensure the accuracy of Mr. Winslow’s data? Oh, that’s right, Mr. Winslow. Or perhaps the one attorney on the Texas Watch staff, who has been licensed all of four [whole] years.

As to the length of time it takes to issue SCOTX opinions in general, while admittedly too long by most any measure, I’ll defer to Justice Scalia’s excellent explanation of the job of an appellate court of last resort: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” His point–analogized to Texas–is that the citizenry of Texas would likely prefer their Supreme Court Justices to be deliberate and thoughtful in crafting their opinions so as to prevent the inadvertent imposition of injustice in numerous lower court decisions that would subsequently rely upon a quickly-drafted yet necessarily slapdash opinion.

For the third time, we’ll reiterate that we agree that SCOTX take a long time to issue its opinions. But in pointing to this obvious concern, if Texas Watch were truly “nonpartisan” as it claims, it would acknowledge–as the Court’s staff attorney did–that during FY 2007, the Court managed to issue the greatest number of opinions since 2000 and the second highest number of majority opinions since 1999, all while operating with the equivalent of eight justices for almost two years between December 2000 and August 2005 due to Court turnover. It might also point out that, while an average of 700 days pendency is nothing to brag about, that is much better than it has been historically–by over a 1,000 days. See Stayton & Eubank, A Study of Pendency in Texas Civil Litigation, 33 TEX. L. REV. 70, 81 (1954).

If anyone is interested in reviewing the actual, accurate, and vetted data regarding SCOTX’s docket, go here to the OCA’s publication page to view the annual reports going back to 1996.

Thx to SCOTX for continuing to address this concern, and the Texas Appellate Law Blog

Tx Dems

Seeing as how Hillary won the popular vote in Texas (albeit, likely in large part due to Republican crossovers), and Obama won the caucuses (in part, thanks to me), I thought I’d check back in on our brave local superdelegate who has been chronicling his adventures in the political process over at the New Republic.

Our suspense will last a little longer, apparently, as David Holmes hasn’t posted since before the Texas election, and from reading the comments, I can tell why. Just take a look at the mindless invective spewed at him (mainly by Obama supporters for pledging his vote to Hillary), to see why I cowardly choose to blog anonymously.

Insulting someone whose vote you seek to gain is not the brightest electoral strategy. I have it on personal authority that David Holmes is a bright, decent, and honorable guy, but you’d never know that from the tripe that fills up the comments on his most recent post.

*** UPDATE ***

Go check out David’s new outlet for his autodelegate musings–including his thoughts on the results of Texas Primary–over at The DOT Show.


As someone who both voted and caucused in the Democrat primary, I wanted to offer my amateur opinion that the split results–a Hillary win in the primary and an Obama win in the caucuses–is anectdotal proof that Republican crossovers handed Hillary the popular vote. Reason being that Republicans seeking to create havoc by voting for Hillary would be much more likely to simply show up and vote once for her (an odious act for any of us on the Republican side of the aisle), than to come back that evening to wait in line for 45 minutes to cast their caucus vote again for her. Accordingly, this explains why the caucuses seemed to follow the conventional wisdom much more closely than the popular vote did, because only true Democrats (me excluded) would bother with the whole unnecessarily convoluted caucus process. I can attest that when I signed my name for Obama, their was only one other caucus vote for Hillary on the caucus sheet, and the talk in line was much more focused on Obama than Hillary.

Thx to David Holmes for sharing his insights and experience with us

Justice JonesSam Houston

Okay, in the interest of fair disclosure, I have voted for a Democrat before, but in my defense, it was my first time to ever vote (and thus, I didn’t know any better), and the Republican nominee was Bob “Grrrrr” Dole.

Well, today marks the second time I’ve voted for a Democrat, and here’s why you should too.

First, anytime a Texas lawyer can vote for Justice Woodie Jones, they absolutely should–and today you can. Second, every Texan should avail themselves of the rare opportunity to vote for Sam Houston at least once in their lifetime. Today I did both.

Tertiary to these reasons, there is ample justification to weigh in on this primary because the rest of the nation actually cares (for once) what Texas thinks this electoral season, and the chance to caucus tonight is just too good to pass up. I’ll be there, and hope you will be too.

Thx to the Texas Democrat Party for giving us two good reasons to vote today

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