DownWithTyranny!: Why is this man smiling? Jeffrey Toobin walks us through the ongoing conservative capture of our state courts

The clown justice gets the last laugh.

by Ken

We've heard and read a lot about the heavy investments made by the billionaires of the Right in the decade before the 2010 census and ensuing reapportionment to gain control of as many governorships and state legislative houses as possible, and we've head and read a lot about the direct effect on legislative agendas -- spearheaded by such luminaries of the rich and reactionary as Wisconsin's Scott Walker, Ohio's John Kasich, Michigan's Rick Snyder, and Florida's Rick Scott -- and also about the even longer-term impact of the right-wingers' aggressive use of their hard-won control over the post-census redrawing of the maps for state-legislative and congressional district lines.

We haven't heard so much about the judicial component of the takeover -- seizing control of state courts by both appointive and elective means. The New Yorker's Jeffrey Toobin addresses the subject in a new blogpost, "The Nathan Hecht Story: Conservatives Capturing Courts."

Toobin starts us off with "a trivia question for those who fancy themselves experts on the George W. Bush era":

"Who is Nathan Hecht? No Googling!"

If you knew, congratulations. You know your stuff when it comes to the Chimpy the Prez era. If like me you drew a blank on the name, well, at the time of his brief celebrity, he appeared little more than another of the assorted goofies and goons who blazed through the firmament in those years.

You will certainly recall the episode, however. It was the short-lived nomination of the Chimpman's personal lawyer, Harriet Miers, to replace Sandra Day O'Connor on the U.S. Supreme Court. Toobin reminds us that it wasn't Miers's complete lack of qualifications for the job that sank her; it was the increasing power of the GOP's Far Right, which didn't trust her credentials as a true-red psycho-extreme right-winger, and suspected her of being potentially another "moderate" like Ronald Reagan's Anthony Kennedy or (God help them) George H.W. Bush's David Souter.

Which is where Nathan Hecht came in. The answer to his question: "Hecht was the Texas judge who gave a hundred and twenty rambling and occasionally bizarre interviews in support of Harriet Miers."

Like much about the Miers nomination, Hecht's zealous advocacy had more than a touch of tragicomedy about it. Hecht had been an associate justice on the Texas Supreme Court since 1988, and he was, at one point, romantically involved with Miers. Unfortunately, Hecht's interviews raised more questions about their relationship than they resolved issues around Miers's qualifications for the Court. As Hecht told the Los Angeles Times, "We are good, close friends. And we have been for all these years. We go to dinner. We go to the movies two or three times a year. We talk. And that's the best way to describe it. We are not dating. We are not seeing each other romantically. Not currently."

Hecht himself was the leading conservative on one of the most conservative courts in the nation. So his real purpose in the Miers nomination was to reassure conservative and evangelical groups that Miers was ideologically suitable to fill a precious seat on the Court. This was an important assignment because Miers had spent most of her life in private law practice, serving most notably as the President's personal attorney. She had almost no public record on constitutional law. On the day Bush named her, Hecht held a conference call with evangelical leaders vouching for Miers's anti-abortion views. If you trust me, Hecht was saying, you should trust her.

Of course it didn't work, thanks to the hue and cry from the embattled Far Right, who didn't trust Chimpy's clown brigade. And their cries were answered with the substitute nomination of "Sammy the Hammer" Alito, a knee-jerk judicial nitwit who is starting to make "Slow Anthony" Kennedy look like a deep thinker.

What prompted Toobin to resurrect the brief, hilarious time in the spotlight of Nathan Hecht? "As of last week, [he] has a new job: he is now the chief justice of the Texas Supreme Court." Actually, what he means is that Nathan, an associate justice of the court since he was first elected in 1988, thanks to a campaign run by Karl Rove, was named to the job last week by departing Gov. Rick "The Man of Silence" Perry, filling the vacancy created by the resignation of Wallace Jefferson -- "to go into private practice," reports the Dallas Morning News's Christy Hoppe.

Christy Hoppe notes:

Alex Winslow, executive director of Texas Watch, a consumer watchdog group that has monitored the Texas Supreme Court, said Hecht's elevation is devastating to "everyday Texans."

Winslow said Hecht has a long history of activist rulings that stack the deck in favor of large corporations in lawsuits.

"His appointment to the top judicial post in Texas is a blow to the notion of fairness and balance on our state’s highest court," Winslow said.

Hecht was first elected to the court in 1988 and has won re-election four times. Hecht has authored more than 350 opinions.

This is all taking place convenienlty ahead of next year's election for the chief justice seat (Texas Supreme Court justices are elected to six-year tems), which we can assume is now safely in the bag for Chief-designate Hecht. It should be noted that Governor Perry's all but certain successor, Attorney General Greg Abbott, heartily approves of the Hecht nomination.

The story of the eight years since Justice Hecht's "brief moment as a major public figure," Toobin writes, "suggest something nearly as important [as "the centrality of the United States Supreme Court to the conservative movement"]: "the transformation of state supreme courts into engines of conservative change."

For much of American history, state courts were relatively sleepy outposts for lions of the local bar. But starting in the nineteen-eighties, state supreme courts (particularly in states where judges are elected rather than appointed) became political battlegrounds. This was especially true in Texas, where a young political consultant named Karl Rove ran the campaigns that turned the Texas Supreme Court from all-Democrat to all-Republican. When Hecht first won election to the Court, in 1988, Rove ran his campaign. Led by Hecht and other Rove clients, the Texas Court became a firm ally of local business interests, especially the insurance industry. (Criminal cases in Texas are appealed to a separate court, the Court of Criminal Appeals, which is similarly conservative. In 2000, I wrote about that court and its presiding judge, Sharon Keller.)

Wallace B. Jefferson, the chief justice since 2004 and a relative moderate by Texas standards, stepped down earlier this year, which gave Governor Rick Perry a chance to fill the vacancy. Perry is leaving the governorship next year and is apparently planning another run for President, in 2016. There was no better way to cement his conservative legacy and make a further claim on the base of the Republican Party than by naming Hecht as chief justice. For conservatives, then, the story of Nathan Hecht has a doubly happy ending: with Hecht himself as chief justice in Texas and Alito adorning the nation's highest court.