Abbott’s Bench: Governor’s 200 Picks Reshape Texas Judiciary

Texas lawmakers passed more than 1,000 bills this spring but their most lasting impact might be on just one constituent, Gov. Greg Abbott.

By approving at least 12 new judgeships in the session that ended June 2, the Legislature ensured that the three-term Republican governor will soon have filled more than 200 judicial appointments, surpassing all his predecessors.

More importantly, it will deepen Abbott’s conservative stamp on a state judiciary he has spent more than a decade shaping and expanding, and one that at every level has reinforced his policy positions and agenda.

Abbott has appointed six of the nine state Supreme Court justices, with at least one more appointment coming. He’s established a new statewide appeals court and a separate business court, and filled every seat on both. Even when elected Texas judges have been voted out of office, Abbott’s tossed them lifelines, including nearly two dozen he simply installed in vacant judgeships.

“The number of appointments and the longevity of those appointments is something every governor would be envious of,” said Brandon Rottinghaus, a political science professor at the University of Houston. “The longer you’re there, the more appointments you can build, and in theory the more loyalty you can generate.”

One comparison could be Florida Gov. Ron DeSantis (R), who has made more than 265 appointments since taking office in 2019. But DeSantis must choose from candidates vetted by a commission; Abbott can pick just about anyone he wants, subject to Texas Senate confirmation only if the biennial legislature is in session.
 
There’s also a fair chance Abbott will surpass DeSantis in the appointment totals. The Florida governor has 18 months left in his tenure; Abbott, 67, has said he will run next year for an unprecedented fourth term.

Abbott’s influence over the Texas judiciary has prompted some not unexpected grumbling among Democrats, who’ve long been out of power.

Within his own party, Abbott is praised for picking jurists trained at elite law schools, in federal court clerkships, and at prestigious law firms—and luring them to the bench despite Texas ranking among the lowest states in judicial pay. (One bill that awaits his signature would increase judges’ base pay by 25%.) 

Abbott declined Bloomberg Law’s request for an interview.

At a Federalist Society event in April, he called judicial appointments “maybe one of the most important jobs I have as governor.”  Asked what he looks for in judicial candidates, Abbott told the crowd he seeks “originalists, strict constructionists who will apply conservative applications of the law.”

The former state attorney general and Supreme Court justice also said he’s got an eye for projecting how a lawyer will act once he or she becomes a judge.

“As a result, you take a more proactive interest in the quality of the people you’re going to appoint to ensure that they are going to fit what I consider to be the core qualities of a top-notch jurist,” he said.

Interactive Graphic: Abbott’s key moments in shaping the Texas judiciary

‘Knows What He’s Looking For’

Abbott’s deluge of appointments has coincided with Texas lawmakers pushing more politically divisive policies, which get challenged in court and thrust his judges into the spotlight.  

Last year, the Texas Supreme Court upheld a law banning medical care for children for the purpose of changing sexes, and reinforced support for the state’s near total abortion ban, blessing an exception to protect the mother from serious bodily injury that opponents called confusing. 

A new statewide appeals court is also likely to draw a brighter spotlight in the coming months, tackling challenges to new laws.

Its mission is to hear and resolve matters brought by or against the state. Those disputes had been long heard by an appellate court in Austin comprised of elected judges, but that bench had flipped from red to blue in recent election cycles. 

Abbott worked with the Legislature two years ago to approve the formation of the new court — the Court of Appeals, Fifteenth District — and give the governor the sole authority to fill its three seats. That ensures no Democratic judge will decide a consequential political question after it leaves the trial court. 

Since it opened in September, one of the only hot-button political cases to come before the appeals court ended with it ruling that cities can’t enact laws banning arrests and citations for small amounts of recreational marijuana.

After the decision, the pro-pot group behind the ordinances blasted “Abbott’s handpicked court.”

Problems occur with giving any governor unchecked power to pick judges, said George Christian, senior counsel of Texas Civil Justice League, a pro-business group. The league has long advocated for a legislative change to let a committee vet candidates for judicial appointments, and then subject those judges to a retention election. 

But despite the flaws he sees in the system, Christian won’t criticize Abbott’s picks. 

“I don’t think the election system would have delivered as good of judges” as Abbott and his Republican predecessor, Gov. Rick Perry, put in the courts, he said. 

Two Abbott appointees on the Texas Supreme Court are Yale Law School grads. Another went to Harvard, and another to Columbia. Two others attended University of Texas, the state’s highest ranked law school. Two also clerked on the US Supreme Court. 

Two Harvard Law grads are on the new statewide appeals court.

Robert Luther III, a law professor at George Mason, said Abbott’s experience as a prosecutor and judge inevitably shape the qualities he wants to see on the bench.

“He knows what he’s looking for, where a governor from, say, the agricultural industry might not know what makes a good judge,”  Luther said.

Lifelines for Election Losers 
 
The governor’s track record also includes returning judges to the bench even after voters have ousted them.

He named Justice Brett Busby to the Supreme Court in February 2019, a month after a Democrat took Busby’s seat on a Houston appeals court. 

Abbott put Emily Miskel on a Dallas trial court bench as one of his first appointments in 2015. Voters in Miskel’s swing district rejected her bid to join an intermediary appeals court in November 2022, but Abbott put her there anyway a month later to fill a vacant seat. 

Of the 22 jurists Abbott appointed after they lost an election, the starkest example might be Jeff Alley. Abbott picked Alley to lead the El Paso appeals court in 2019, but Alley lost the seat in an election the next year. Abbott then re-appointed him for a vacancy on the same court. Alley lost again in 2022 — only to see Abbott appoint him to the court for a third time. 

Abbott’s defenders blame the system: They say political whims leave competent judges vulnerable in elections because casual voters don’t know enough about them.

“Political sweeps have taken out some very good people,” said Paul Green, a former Texas Supreme Court justice. 

In 2020, Green stepped down with time left on his elected term, a decades-old practice by judges that lets the governor, rather than voters, install a replacement until the next election.

Abbott is now expected to appoint a replacement for Supreme Court Justice Jeff Boyd, who is leaving 18 months before his term ends.

In April, state Rep. Ann Johnson (D) pushed back against Abbott’s appointee powers. During a committee hearing on expanding business courts, Johnson raised constitutional concerns because those judges don’t run in elections. But Johnson didn’t bring it up again when the bill came to a floor vote and passed in May. 

Johnson didn’t respond to a request for comment.

Supreme Influence

For all his appointments, Abbott never had a chance to fill the state’s highest judicial office until this year. Chief Justice Nathan Hecht, a Perry appointee, aged off, igniting speculation on who Abbott would select to lead the court. The chief justice traditionally crafts rules for the court and pushes the judiciary’s interests to the legislature. 

Abbott tapped Jimmy Blacklock, whom the governor first appointed to the court in 2018, and picked James Sullivan to fill the vacancy. Both previously worked in the governor’s office under Abbott as general counsel. 

Texas Supreme Court Justices Jimmy Blacklock, left, and Brett Busby.

Texas Judicial Branch

As the state senator over the Austin area, Sen. Sarah Eckhardt (D) could’ve moved to torpedo the appointments. But after meeting them and reviewing their credentials, Eckhardt signed off.

“I do not consider their political persuasion,” she said. 

Not long after taking over, Blacklock warned the State Bar of Texas to “remain politically neutral” after it tried to sanction Texas Attorney General Ken Paxton (R) for interfering with the outcome of the 2020 presidential election. 

The Supreme Court ruled against the Bar in the case, handing Paxton the win. 

Under Blacklock, the court also launched a salvo against the American Bar Association over political advocacy. After the US Justice Department threatened to pull the ABA’s authority to accredit law schools over its diversity, equity, and inclusion practices, Blacklock and the Supreme Court asked for public input on potentially ending a requirement that all lawyers admitted in the state must graduate from an ABA-approved school. 

More recently, the high court on May 9 nodded to Abbott in a non-political case involving the shooting death of a police officer by a shoplifter. 

In 1996, Abbott as a member of the Supreme Court joined a concurring opinion advocating for a rule that restricts the legal duties owed to an officer. Nearly 30 years later, the mostly Abbott-picked court adopted it, finding that Home Depot wasn’t liable because the responding officer should’ve known the shoplifter could pose a violent threat.  Their ruling included a citation to the 1996 opinion.

With the state legislature in recess until 2027, a host of new legal challenges are expected to make their way to Abbott-influenced courts. 

Observers say one could contest Abbott’s attempts to change bail to crack down on dangerous criminal defendants getting released before trial.  Another would take on his signature plan to divert public dollars to private education, a years-long priority that Abbott signed into law in May.

Foreshadowing a possible challenge to that, Abbott in a social media post in April wrote: “Let’s set the record straight. There are NO constitutional barriers to school choice in Texas.” 

Lawyers are also expected next month to file the final brief in a challenge to Abbott’s call for a state-led child abuse investigation into sex change procedures on minors. A decision is likely to come during the court term that starts in September. 

By then, Abbott will be able to claim credit for appointing seven of the nine justices. Boyd is on his way out, and in April Sullivan interviewed for a federal district bench that remains open. 

Should he get it, Abbott would get a second pick.