The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Great institutions only become great if their people build them that way.

Texas lost just such a builder on February 11 with the death of Justice Joe Greenhill.

After the jump, we feature a personal remembrance of Judge Greenhill by my colleague, Judge Scott Brister, who served as Judge Greenhill's law clerk before later serving on the Supreme Court of Texas himself.

Pictured: Judge Greenhill (left) and Judge Scott Brister (right) on the occasion of Judge Greenhill's last visit to the Court in 2007.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Have I said lately why "my" courts rock here in Houston?  Hat tip to the Texas Lawyer Blog for tipping me off on this story. 

Justice Jane Bland of the First Court of Appeals here in Houston will be honored by Chief Justice John Roberts at the Supreme Court of the United States:

Justice Jane Bland . . .   will receive the National Center for State Court’s 2010 William H. Rehnquist Award for Judicial Excellence at a ceremony tonight at the U.S. Supreme Court in Washington, D.C. U.S. Supreme Court Chief Justice John Roberts will make the presentation to Bland . . . . Mary C. McQueen, president of the National Center for State Courts, noted in a news release on the NCSC website that the center recognized Bland for her outstanding skill as a state trial and appellate judge and for her commitment to giving back to the community through bar and volunteer work.

I love seeing good people get recognized, and Justice Bland is "good people."  Justice Bland is smart as a whip, is always prepared, listens, asks good questions, and works hard with the goal of coming to the right answer.  Win or lose, what more could you ask for in a judge? 

And here in Houston, Justice Bland is not alone in those qualities.  Look down the benches and you'll see.  We have it good here in Harris County, Texas.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A quick bit of news especially relevant to our Texas and Houston readers.

Texas Governor, Rick Perry, has appointed Harvey G. Brown of the firm Wright, Brown & Close LLP as justice of the First Court of Appeals here in Houston. 

Brown, who formerly served as Judge of the 152nd District Court in Harris County, will take the place formerly occupied by Justice George C. Hanks.  His term will expire at the next general election.

Brown is a Texas "Super Lawyer," a frequent and highly sought after CLE speaker, and he writes with a very high level of scholarship on a variety of issues including the uses and admissibility of expert testimony (pdf). 

Both before and after serving on the trial bench, Brown pursued an active and sophisticated civil trial and appellate practice here in Houston.  He will join a bench that I already consider one of the smartest and best prepared of any that I get to argue before. 

Congratulations to Justice Brown and to Governor Perry for a well-made selection.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Hat tip to the Texas Lawyer's Tex Parte Blog for making me aware of an interesting story.

The National Cowgirl Museum and Hall of Fame in Fort Worth, Texas has inducted Hortense Ward, the first woman admitted to the practice of law in Texas, because cowgirls like her make an impact.

From the Tex Parte Blog:

After Ward was admitted to the bar, she also became the first woman from Texas — as well as from below the Mason-Dixon line — to be admitted to practice before the U.S. Supreme Court. As president of the Houston Equal Suffrage Association, she was the first woman registered to vote in Harris County and in the 1920s helped elect the first woman Texas governor, Miriam A. “Ma” Ferguson. She also led the charge to pass the Married Women’s Property Act, allowing married Texas women to control their own property and earnings.

Now, of course there are three women serving on the US Supreme Court and two on the Supreme Court of Texas.  Indeed, Justice Harriet O'Neill served as Acting Chief Justice of our state supreme court shortly before she retired, and it was so normal and common place that it almost passed without notice.

Interesting side note: Hortense Ward may have been first at the bar, but she was second in the Cowgirl Hall of Fame.  I daresay you've heard of the first cowgirl, rancher's daughter Sandra Day O'Connor. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Tomorrow is September 25. So what, you ask?

Only three more months to finish that Christmas shopping and get all the holiday cards addressed and signed.

Actually, September 25 provides a more interesting confluence of events.

On that date  221 years ago, the First Congress of the United States of America proposed a series of amendments to the Constitution. Uncharacteristically for Congress, the legislative product got shorter as it went along. 

Seventeen amendments were trimmed to 12 in the Senate, of which 10 were ratified by three quarters of the states. 

Yes--those 10. The Bill of Rights--a document originally intended to create a "fed free" zone of liberty with words like, “Congress shall make no law . . . .”

(**An 11th, now known as the 27th Amendment prohibiting a Congress from raising its own pay, was finally ratified in 1992--hat tip to Judge Brister**)

Astounding by modern standards that Congress would ever draft a sentence beginning with the words, “Congress shall make no law.”  But they did, because folks believed that the new federal government was a potential threat to liberty if its power were not expressly limited.

But there’s some irony here too because sometimes a strong federal government is the only effective guarantor of liberty. On this same date 53 years ago, federal power enabled the Little Rock Nine to finally enter Central High School. 

Interesting that the local public schools in Little Rock developed their own desegregation plan even before Brown v. Board of Education--liberty not being the sole province of the federal government. Yet, the local government did not have the horsepower to carry it out all by itself.

Before the Little Rock Nine could finally start school, it took the orders of Federal District Judge Ronald Davies enforcing the plan. It also took President Eisenhower nationalizing the Arkansas National Guard--a body which had been used only days earlier by Arkansas’ governor to frustrate desegregation.

So, maybe government, especially a powerful, central government is bad.

Except when it is good. 

Or perhaps its not as simple as a stump speech.  Maybe government is like a hammer, a tool which is equally capable of smashing windows or sculpting marble, depending upon who holds it and how it is handled.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As reported by Erin Miller at SCOTUSBlog, the committee vote on Elena Kagan's Supreme Court nomination has been delayed until next week, ostensibly to provide additional time for senators to parse her written responses.  I suppose that's little enough to ask in exchange for a most prestigious job for life, but color me cynical.  No matter what the answers say, we will be treated to senators in front of television cameras opining that the same person is either an insufferable "judicial activist" or unsurpassed "legal scholar," and one already knows which senators will hold which view.  One suspects, therefore, that ideology has become disconnected from reality, no matter which ideology is held.

The cynic amongst us, therefore, would say that senate confirmation hearings are nothing more than an empty Kabuki dance--and that with bad dancers.  All the players assume their accustomed rolls and say their accustomed lines while performing their accustomed movements.

The high minded might counter that the Senate has a constitutional obligation to carry out as part in the separation of powers--at its height to save The Republic from life tenured legislators run amok.

Presumably, that is why the language of the high minded can become so heated, to wit, this statement about The President's nominee:

It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a person could be put in the Court, as I believe she is likely to be. She is a muckraker, an emotionalist for her own purposes, a socialist, prompted by jealousy, a hypocrite, a person who has certain high ideals in her imagination, but who is utterly unscrupulous, in method in reaching them, a person of infinite cunning. . . . of great tenacity of purpose, and, in my judgment of much power for evil.  

I mean, if half of that were true, who would nominate (much less confirm) such a scoundrel?  But can even half of it be true?  And have we now made such a mess of the confirmation process that such incivility occurs without condemnation? 

But don't answer yet.

That statement is not about President Obama's nominee.  And the nominee was not even a woman.  I cheated.  I changed the gender in the quote. 

The quote is about President Wilson's nominee.  And the nominee's name was Louis Brandeis. 

Yes, that Louis Brandeis. 

The person who hurled such calumnies at the future Justice Brandeis was William Howard Taft, who probably wanted the appointment for himself and who later served as Chief Justice on the same court with this Brandeis "muckraker." 

And yet The Republic managed to survive the muckraking creator of the Erie Doctrine.  (The Republic has, to date, always done so).

The point: we've been doing confirmation wrong for a long time.  The amount of wrongness just waxes and wanes with the political temperatures of the times.

But it is still wrong, even if well-established wrong.  And it is a wrong lawyers have special responsibility to address.  Ours is the job of promoting respect for the judiciary, even a judiciary with which we sometimes disagree. 

How would this process look if self-serving Senators were held accountable by members of the bar in their states?  And I wonder, do we lawyers have the judgment to recognize opportunistic Kabuki dancing, even when committed by those of our own political stripe?

We now return you to our regularly scheduled appellate blog.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Did you notice when the Fifth Circuit ceased to be?

Let me explain.

No, let me sum up.

The Fifth Circuit ceased to exist for one particular case.  The result was a non-en-banc en banc reversal of the panel opinion, and the non-affirmance affirmance of the the district court opinion. 

I am referring to Comer v. Murphy Oil.  The District Court dismissed the case holding that hurricane victims could not sue the military industrial complex for worsening their hurricane damage by contributing to global warming.

A panel of the Fifth Circuit held, "yes you can."

The en banc court said, "no you can't"

Except it didn't.  Well, kinda.  After the jump, an explanation and a recommendation. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

I can no longer find the quote, but I heard it said somewhere that the definition of a "legal fiction" is "something only a lawyer could believe."  I could not avoid that impression upon reading Salazar v. Buono (pdf), decided Tuesday by the Supreme Court of the United States. 

At issue?  According to Justices Kennedy and Alito: two lengths of four inch pipe, painted white and arranged in the shape of a cross, erected 10 miles from the nearest highway in a portion of the Mojave desert owned by the federal government that exceeded the combined area of the Nation's five smallest states and that was "likely . . . seen by more rattlesnakes than humans." The pipe sparked four lower court opinions to the effect that such pipes "establish" a religion, which, once established could not be cured by Congress passing a law to transfer the land into private hands for continued maintenance as a monument to "the Great War."

Why?  According to Justice Scalia: Because Mr. Buono was "deeply offended by the display of a Latin Cross on government-owned property" but had "no objection to Christian symbols on private property."

Hemmed in as they were by Mr. Buono's first final judgment, for which Supreme Court review was never sought, the Supreme Court could not reach the merits of whether such a display "established" a religion or whether Mr. Buono's "deep offense" was a sufficient injury to "make a federal case" out of it.  Nevertheless, the Court devoted 71 pages of judicial contretemps in six opinions concerning whether Mr. Buono's Constitutional right not to be "deeply offended" survived the Congressional transfer of the land to the Veterans of Foreign Wars. 

And they remanded to the District Court for further proceedings on the transfer of the land with the lengths of four inch pipe.

Now, don't get me wrong.  I don't discount real establishment clause issues as unimportant or simplistic.    I was at just such an argument the very day this case came out.  But is Buono how we should be expending our judicial resources as Plaintiffs or as Defendants or as Courts?  Especially in a case where no Establishment Clause precedent is even possible?

Chief Justice Roberts' concurring opinion said it best.  This is not surprising, because it was also the shortest.  I reproduce it here in full:

At oral argument, respondent’s counsel stated that it “likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them,with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).

(Emphasis added).

For all the post-opinion-learned-head-cogitation on my television, there is very little "there" there.  Whether one's own culture war scruples emphasize "establishment" or "free exercise," the substance of those protections is cheapened for both sides when the alleged injury and the substantive controversy are something only a lawyer could believe. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Several weeks ago, a post here on TXI Transportation v. Hughes (pdf) made mention of the fact that a majority of our current Supreme Court of Texas would not have had opportunity to serve at the time of that court's 1889 opinion, Moss v. Sanger, condemning appeals to racial animus in arguments to the jury.

Something just as cool happened this week.  John Council of the Texas Lawyer Blog noted:

. . . Texas Supreme Court Chief Justice Wallace Jefferson was traveling yesterday and could not be at oral arguments. So, by tradition, the most senior justice on the court took his spot in presiding over the first case on the docket. Since Justice Nathan Hecht, the high court’s longest- serving justice, recused himself from hearing TGS- NOPEC Geophysical Co. v. Susan Combs, et al., the job of presiding over the court fell to the next most senior justice, Harriet O’Neill. O’Neill says she didn’t realize it at the time, but it was a historic moment. A woman has not presided over the Texas Supreme Court since 1925, when Gov. Pat Neff appointed an all-woman court. . . .

But the really really cool part is that it happened as a matter of course and nobody noticed until after the fact.  Justice Harriet O'Neill just happened to be the senior justice on duty, and she just did her job, as she has been doing since 1999.  John Council quotes Justice O'Neill:

Isn’t that amazing? I didn’t even think about it,” . . . .

Now we're getting somewhere--when the "right thing" that used to be so hard to do or so exceptional or so controversial becomes so accepted that it happens without a thought.  Nice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link