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It was Valentine’s Day 2024, and Gov. Greg Abbott was out to dinner with his wife — the only night of the year the busy couple gets to dine alone, he said — when he got a phone call.
“I said, ‘I’m sorry, I gotta take this,’” he recounted Thursday.
It was Elon Musk, upset over recent rulings against his companies in Delaware. Abbott said he assured the billionaire that Texas was creating business courts specifically to handle legal challenges like these, and “would have his back.”
The interruption was worth it: the next day, as Abbott tells it, Musk filed paperwork to relocate SpaceX to Texas.
Speaking to a gathering of conservative lawyers, judges and students at the University of Texas at Austin Law School on Thursday, Abbott addressed an aspect of his governorship that is as important as it is underrated — his influence on the state court system.
Abbott played a major role in creating these new business courts, which he appoints judges to, and a new appellate court to hear cases specifically by or against the state government. He’s also appointed a supermajority of the justices on the Texas Supreme Court, where he also once served.
These appointments have been “one of the most important jobs I have as governor,” he said Thursday. “It's good to have a governor who has been both a lawyer and a judge, so you have an appreciation for valuing the importance of the role that a judge plays in our lives.”
Thursday’s event was hosted by the UT chapter of the Federalist Society, a conservative legal group that has helped shift the nation’s jurisprudence to the right through the placement of judges, lawyers and law students in key positions at the local, state and federal level.
The event drew criticism for being open only to Federalist Society members, rather than the wider UT Law community. More than 50 students lined up outside the event with signs, banners and tape over their mouths, protesting the university and the governor for not allowing them to attend the event.
“I think we deserve to know what is being said by our governor and what is happening at our school,” said Kat Daffin, a third year student. “If they really cared about free speech, the least they could do is livestream it.”
Courting influence
Abbott, who supported the 2023 legislative proposal to create business courts, said Thursday they were already fulfilling their goal of offering “predictability and certainty” in court rulings. While about half of all states have dedicated business courts, Texas’ version stands out for the close control the governor has over their makeup.
Unlike other state courts in Texas, where judges are elected, Abbott appoints judges to the business court, and they serve only two year terms, a short stint compared to similar courts in other states.
“This doesn’t give us an independent judiciary,” Michael Smith, with the American Board of Trial Advocates, told The Texas Tribune in April 2023. “It gives us employees of the executive branch which are serving two-year terms.”
The new appellate court, called the 15th Court of Appeals, has similarly drawn criticism for allowing Abbott to cherry pick judges who support his ideology. Supporters of the new court argue that lawsuits by and against the state should be addressed by a statewide court, rather than a court elected by Austin-area voters.
Those voters, Abbott said, have “an electoral ideology that's different from those who govern the state of Texas,” and the judges they elected “had a perspective completely at odds with what the elected representatives of the state of Texas were trying to do to fulfill the wishes of the electorate.”
How to become a judge
Abbott was interviewed by interim UT President Jim Davis, who worked for the Office of the Attorney General before he came to the university. Davis told a story about meeting with then-Supreme Court Justice Abbott in 2000 and asking how someone went about becoming a judge.
Abbott said there were two ways, Davis recalled: you either got elected, or, “you can figure out who’s going to be the governor later in [your] life.”
For Abbott acolytes, the latter has proven the fastest path to the bench. Abbott has appointed six of the nine Supreme Court justices, all of whom are Republicans, as well as numerous appellate judges.
The current chief justice of the Supreme Court, Jimmy Blacklock, was Abbott’s general counsel before he was appointed to the bench. Abbott’s most recent appointee, James Sullivan, has a remarkably similar resume.
Sullivan was in the audience Thursday, and when Abbott mentioned his recent elevation to the bench, the justice joked that Abbott would “get ‘em next time, boss,” before he corrected himself — “former boss.”
Abbott said he looks for judges who are originalists, meaning they subscribe to a legal theory that says judges should rely only on the original text of the U.S. Constitution. It’s a judicial philosophy often associated with conservatism, which Abbott drove home in saying he wants judges who will “apply conservative applications of the law, not expanding it, but deciding on the basis of what legislators or Congress or the Constitution itself decides.”
There’s an abundance of those types of lawyers to choose from in Texas, Abbott said, noting that members of the Federalist Society, in particular, have “certain core principles of what you expect judges to do.”
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