Texas Supreme Court resignations mark 'sad departures,' observers say

By Chris Rizo | Aug 19, 2009

Sherry Sylvester

Don Cruse

AUSTIN, Texas (Legal Newsline) - Texas Supreme Court Justice Scott Brister's planned retirement from the state's high court will mark a "sad departure" for the Lone Star State's judiciary, a court observer said.

On Monday, Brister said he was resigning from the high court on Sept. 7 to return to private practice with the law offices of Andrews Kurth LLP, where he will lead the firm's appeals division in Austin.

"This is a big loss for the state of Texas," said Sherry Sylvester, spokeswoman for Austin-based Texans for Lawsuit Reform. "Justice Brewster has really dedicated his judicial career to efficiency and speeding up the docket. He did that as an appellate judge and he did it on the (Supreme) Court."

Brister is one of the high court's "fiercest questioners and most quotable opinion-writers," Austin attorney Don Cruse wrote on his legal blog, noting that the Republican jurist had never filed a brief with the state Supreme Court before his appointment to the bench because he practiced trial law.

Brister's announcement comes on the heels of Supreme Court Justice Harriet O'Neill's announcement that she will not seek another six-year term in 2010. The only female serving in the Texas Supreme Court, O'Neill is said to be considering a run for Texas attorney general, a post currently held by Republican Greg Abbott.

"Both Justice O'Neill and Justice Brister brought incredible legal minds and innovative thinking to the court," Sylvester said. "These are sad departures; these are outstanding justices."

Brister practiced in the litigation section of Andrews Kurth's Houston office from 1981 to 1989.

A former Harris County judge and state appeals court justice, he was appointed to the nine-member state Supreme Court in November 2003 by fellow Republican Gov. Rick Perry, and won election to the post in 2004.

O'Neill, also a former Harris County, was elected to the Texas Supreme Court in 1998 and re-elected to a second term in 2004. Justice Jim Moseley of the 5th Texas Court of Appeals in Dallas has said he will run in the GOP primary for O'Neill's seat.

Sylvester noted that her organization supported both Brister and O'Neill in their most recent Supreme Court races.

Since Brister is leaving in the middle of his term, the governor will be able to name his replacement. With the confirmation of the state Senate, the appointee will be able to hold the seat until 2010. The appointee can run for election on next year's statewide ballot as the incumbent.

Sylvester said she expects Perry to appoint a conservative jurist to fill the vacancy.

"The governor has a good record of appointing extremely competent, conservative judges," she said. "We expect he'll to do the same this time."

Cruse told Legal Newsline that he expects Democrats to make a strong push for one of their own to be elected to the high court in 2010.

"In 2008, the Texas Democratic Party started to contest the statewide judicial elections after years of spending their resources elsewhere," Cruse said. "It's too early to say which of the 2010 judicial races will be most competitive. Although the person the governor picks for Brister's seat will have some advantage (because) they might be spared a party primary, for example."

He said he expects that the race for the Republican gubernatorial nomination next year between Perry and U.S. Sen. Kay Bailey Hutchison to influence down-ballot races such as those for the state Supreme Court.

"The most important 'judicial' race in the fall might be at the top of the Texas ballot for (U.S.) senator and governor," Cruse said. "The turnout in those races will likely drive the judicial outcomes, too."

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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