Why are you seeking this bench and what 3 primary goals do you have in mind if you are elected?
Texas has two Supreme Courts--the Texas Supreme Court and the Court of Criminal Appeals. I am running for the Presiding position on the CCA. I am running because I believe Texans -- lawyers and judges such as myself included -- have been expressing growing concern about the fairness and competence of the state's courts at every level and only these two supreme courts are responsible for the rules, oversight and correction of the judicairy and ultimately any sense of public assurance that the state's government is operating in accordance with the Constitution. I chaired the State's Conduct Commission (the body the Tex. Const. creates to oversee all judges) while I served as a Justice on the Fifth Court and as Deputy Attorney General before. I have been very concerned and calling for basic ethics reforms for more than a decade in the U.S. Supreme Court and elsewhere. Almost a decade ago the U.S Supreme Court allowed states to regulate the way judge's behave to promote confidence in their operations. Other states have acted to lprohibit judges from asking for money from lawyers with cases pending before them, to reduce the amounts that can be given, and the like. Texas is alone in going backward. The CCA, in my view, has been undermining public confidence in itself and the other instruments of .government, releasing incoherent decisions on the most basic and critical issues undergirding public concerns about the integrity of their government like voter fraud, the obligations of prosecutors and judges to pursue cases and do so timely, and reaching out and raising issues and making arguments for convicted offerenders on their own (not made by their own lawyers), without allowing the state to respond, and granting victory to the convict, all while releasing very few opinions at a snail's pace
I would 1) Continue to demand rules and ethics reforms to promote confidence that the judge's are impartial and the decisions are grounded in the constitution; 2) put deadlines on the judges themselves and 3) assure transparency in the court's operations
Are the United States and Texas constitutions living documents? Please answer in the context of Progressivism versus Originalism.
They are not living other than in the sense that the written words are committed to care of the judges and justices to apply them as they swear to do in their oath--according to their plain meaning as written and reasonably understood at the time. If people want to change that, there's a process for it intended to assure that the people are governed by their own consent and not by the evolving whim of one branch of the government.
What carries the greatest influence on your rulings: case law, the Constitutions, or other?
Constitution, first. Caselaw is only relevant to the extent it is consistent therewith. I think people too often forget that the courts are only one branch of government. So, prior judicial decisions are not all that courts should be concerned with when they impart on constitutional or stautory construction. The longstanding interpreation of the constitution by other branches is also important; and, courts should be reluctant to break off on their own to declare that the other two branches have it wrong. That's another recipe for tyranny by judiciary
Please describe the best way for the average voter to determine which judicial candidate is best.
Ideally, they'd look at past case work. They don't have the time, so they'll rely on others they trust. There are other basic questions; what are your qualifications, were serious people with a choice in their lawyers willing to put their fate to your hands, have you been sanctioned by the state bar (if a lawyer) or the commission on judicial conduct (if a judge), where did you rank in your law school class are you borad certified?
Do you believe in the right of the people to jury nullification as jurors in criminal courts? Why or why not?
Yes. The Constitution assures a Defendant of a right to trial by jury and of the juror's right to serve. Judges can't take either away. I've written on that in thecriminal context. It doesn't matter why a jury acquits or whether I disagree with it.Once the jury's answered, the Double Jeopardy Clause forbids examination of why.
To what extent do you believe the state or federal government should be able to obtain court orders directing parents to do things for their children that the parent does not believe should be done?
I have written numerous opinions on the rights of parents, the preumption of their fitness and the right to make decisions affecting them absent high levels of proof, including numerous dissents.
Please describe the qualifications and experience that make you the best candidate for the office you are seeking.
I attended Baylor Law School and graduated first in may class, served as editor in chief of the law review, clearked for the Chief Judge of the federal Fifth Circuit court of appeals (where I drafted dozens of criminal decisions), worked at Jones Day in D.C. doing U.S. Supreme Court and other appellate work, returned to Texas and ran the appellate practice at a large law before rerutning to Jones Day to run the Texas appellate practice. I then became Deputy Attorney General, running six divisions (including opinions and leading the state's defense of redistricting). I was appointed by Governor Perry to the largest appellate court in the state (Dallas) and served for 8 years with a record I welcome scrutniy of on any issue demonstrated my willingness to stand firm and alone where necessary (google "Justice Schenck does not pull punches" or Jonathan Turley on the "Dickson v. Afiya" abortion fight) . I served on the State Commission of Judicial Conduct and as its Chairman, again standing firm on the Constitution and the obligation of judges to comply with their obligations under it. I am 56 and eligble to serve all of the term under election and several others.
My opponent to my knowledge had a more limited law practice and never served as a judge before coming to this court and in contrast is 71 and cannot constitutionally serve the next six-year term that's up. She's been sanctioned by the State Conduct Commision (before I served on it) for conduct casting "discredict on the judiciary, "was separately levied the highest fine in teh history of the ethics commission for failing to report financial information, including her ownership of the property operating the "Doll House," and reportedly promised to favor prosecutors if she was elected to the court when initially running, which, if true, would in my mind cosntitute disqualifiying bias requiring recusal in 100% of the cases the court hears no diffrent from that evidenced by Franklin Bynum in Houston when my Commission recommended his removal from the bench for the opposite expression of bias.
What 2 things about your opponent do the voters need to know?
In view of the failure of the proposed Constitutional amendment that was evidently aimed at her and several other Bush era joldovers, she cannot complete the term under the Constitution as I understand it. And, see above.
What role should government have in reforming criminals?
Well, that's up the Texas Department of Criminal Justice who runs the prisons. It's job is to assure that those convicted of crime pay for their offense by a loss of liberty and cannot reoffend by escaping. What else they do with them, in keeping with the Constitution, is up to them. Judges have the sacred obligation of impartially presiding over trials with the mandate of separating the guilty from the not guilty as quickly as possible. Once that's done judges' views on that become irrelevant, except for collateral attacks (i.e., habeas corpus) on the underlying conviction and possible lawsuits.
How relevent today is Blackstone's maxim "All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer".
As relevant as the framer's declared in writing the constitution and bill of rights (and Texas own parallels). That would include the presumption of innocence, the obligation to prove guilt beyond reasonable doubt (a concept I incidentally litigated to a habeas victory for a Lousiana man once), the right to confrontation, to remain silent before trial, to avoid self incrimination at trial and to appointed counsel -- none of which obtains in civil proceedings. So, I'd say we did pretty well by Blackstone, but he doesn't have a vote anymore.
What Texas State court decision do you think has most impacted society? How and Why?
Most recently, I'd say the Stephens v. State decision of the CCA that declared that the Legislature could not empower anyone other than the local county and district attrorneys in the county who are elected in the same county where the fraud is alleged to occur to investigate or prosecute the fraud. I'd say that a groundbreaking Constitutional decision like that coming at time when the people need to have consistency, transparency and confidence with their elected organs of is disconcerting. And, being cautious about how much I say here, should be written in a way that is at least internally consistent, logical and grounded in the Constitution's text in a way that both lay people and legal experts could read and understand so that their confidence in their elections and courts is not further shaken. I'm not certain the opinion meets that threshold, and won't say more than that at this time.
CSPOA says "Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds." How should these Civil Forfieture issues be addressed?
Well, that's up to the legsilature and the Texas Constitution. As I may have to rule on these quesitons I will say that my preference, were I running for or serving as a legislator, would be to limit forfirture to coming about only after (1) final conviction, including exhaustion of direct appeals and (2) of property used in commiting the offense.
In your view, what is the threshold for determining constitutionality of a legislative act? or a challenge to it?
Inconsistency with the text as written and reasonably understood by its authors and the voters who raitified it at the time. Every statute comes with a presumption of its constitutionality and the party attacking it is under the burden to overcome per the above.
Please describe the changes you will make to improve the efficiency of your court, yet remain thoughful about rulings/orders - that allows all parties to be heard and their arguments considered. Please specifically address how many days a year your court will be “in session.”
The court is inactive and slow. The court is contantly in session and decisions should be forthcoming on discretionary review (i.e., will the corut hear the case) within 90 days of the completed application and the decision should be made on cases granted within 90 days of submission. The court's judges should be, in keeping with canon 3A (judicial duties take precedence over all others) and 3B(9) (judge must "dispose of all matters promtly") The judges at present are issuing on 49 opinions per judge/year and on average take more than a year to decide each case. That's unacceptable. I would exepect an opinion to circualte within 90 days of submission and remove the writing judge's authorship if the opinion isn't circulated for approval within 120 .
Among the nine justices on the U.S. Supreme Court(SCOTUS), which one do you respect the most, and why? Which one do you respect the least, and why? What judicial philosophy should a SCOTUS Justice have?
I respect them all frankly. I like Alito and Thomas as faithful textualists. I most disagree wtih Sotomayor's purpos-driven review, as I disagree with it.
If elected, do you think you'd be invited to participate in the Freedom Caucus? Why or why not?
Yes. I'm not sure judges are though and I'd have to study the agenda before going.
