In addition to my constitutional and statutory duties, a significant portion of my thirteen months as secretary of state was devoted to negotiating with the trial lawyers to resolve the fee dispute without jeopardizing the substantial award to the state. Our strategy was to sever in court our dispute over the legal fees from the state’s award. Morales and the trial lawyers initially resisted our efforts to sever, knowing that our fear of losing the state award was a powerful leverage against the governor. That the outside counsel would hold hostage the state’s award to protect their own fees raised eyebrows that they had breached their fiduciary duty to their client.
The interaction between the players was fascinating to me. Conversations were usually cordial, but at times they grew tense. I spent countless hours in meetings and discussions with the trial lawyers and the attorney general’s office attempting to find a solution. There were several hearings in federal court, multiple conferences in the judge’s chambers, and clandestine meetings with individual trial lawyers—all without success. Eventually the governor, seeing little progress, agreed to allow the issue of the legal fees to be arbitrated. Even reaching that agreement was complicated by the emergence at the eleventh hour of a lawyer named Mark Murr.
Murr was a friend and former colleague of Morales. Morales claimed that Murr had been a close advisor to him in the tobacco litigation and was thus entitled to a percentage of the legal fees. The trial lawyers became angry and suspicious when Morales produced engagement contracts with Murr for the first time; in fact, the trial lawyers contended that they had never heard of Murr! I, too, was surprised and had doubts, having never met nor spoken with Murr. Even after a majority of the trial lawyers told me they were willing to move forward and resolve the dispute over the fees, Morales continued to refuse to approve any agreement between the governor and the trial lawyers over severance or the fees unless Murr was also paid.
As we approached the fall 1998 elections, the governor wanted this matter resolved. The issue of the fees was serious but it was also a distraction, and Governor Bush was simply more comfortable allowing other state officials, particularly future attorney general John Cornyn, to carry on the fight.
Eventually Murr received an award through an arbitration panel, but questions about the legitimacy of his claim continued. As the scrutiny intensified, Murr walked away from his award. The questions, however, remained.
Following federal and state investigations, Morales was arrested, tried, and sentenced to four years in a federal prison for mail fraud and tax evasion. An indictment to which Morales pleaded guilty said he tried to steer more than a million dollars in unearned legal fees to Murr, who had previously admitted his role in the scheme and received a six-month prison term.
The trial lawyers eventually got their big payday following arbitration, and over time the state received its money, although some experts question whether the successful litigation truly affected the behavior of the tobacco industry, or whether the monies from the award intended to educate the public of the dangers of smoking made a difference.
For me, the “tobacco war” was an interesting experience involving huge egos, corporate liability, political fortunes, criminal wrongdoing, and ethical improprieties, all with billions of dollars at stake. I learned a lot about greed, power, and human nature. I also learned that I was a pretty good negotiator, a skill that would serve me well in the years to come.
After serving as secretary of state for ten months, on September 30, 1998, news broke that Justice Raul Gonzalez of the Texas Supreme Court, and the only Hispanic on the nine-member body, was stepping down. Raul was a socially conservative Democrat, and the assumption was that Governor Bush would replace him with a Republican. Bush understood Hispanics, and they trusted him. In meetings, the governor sometimes lamented spending more money for prisons when we were spending comparatively little for schools to educate Hispanics, especially in southern Texas. He made it clear that he wanted a Hispanic on the court. Racial diversity was important to the governor, and with Justice Gonzalez’s retirement, our court was devoid of diversity. That turned the spotlight on me.
The following morning, I attended a breakfast for the energy minister of Mexico held at the governor’s mansion. As the secretary of state, it was not unusual that I should be included at the event, and following the minister’s departure, Governor Bush nodded to me and said, “I need to talk with you. Come on upstairs to the residence.”
I followed the governor upstairs and almost as soon as we sat down, he looked me in the eyes and asked, “Do you want to go on the Supreme Court?”
Even though I understood the circumstances, his question still surprised me and threw me off guard slightly. “Do you want me to go on the court?” I asked.
He looked at me in surprise, as though saying, “It’s not what I want; what do you want?”
I had never aspired to be on the court; indeed, I worried that my legal experience might not be broad enough. I had worked quite successfully as a transactional lawyer, handling business deals worth millions of dollars, but I was not a litigator who argued cases in front of a judge or jury. Nor had I ever been a trial judge. That didn’t seem to matter to Governor Bush.
“Can you give me some time to think about it?” I asked.
“Sure, take the time you need,” the governor responded.
I talked to Becky about the pros and cons of the position. Unlike the United States Supreme Court justices who are appointed for the remainder of their lives or until they choose to retire, justices in Texas serve six-year terms and then must run for reelection. Although Governor Bush would appoint me to fulfill the final two years of Raul’s term, I would have to stand for election in 2000, and I wasn’t sure my heart was in that. I loved my job as secretary of state. Besides, what would we do if I lost? I talked with several other people whose advice I highly respected, and they suggested that besides being a great honor and an important way to serve our state, going to the Texas Supreme Court would be a worthwhile career move for me. Becky and I concluded that our advisors were right. I accepted the appointment and took a seat on the court in January 1998.
Some of the most difficult cases I faced as a supreme court justice were a series of parental notification cases involving a controversial piece of legislation allowing young women under the age of eighteen to have an abortion in Texas without notifying their parents if they had the permission of a state judge—known as a judicial bypass. If there was a preponderance of evidence that the minor was mature and sufficiently well informed to make the decision to have an abortion; or if parental notification was not in the best interests of the minor or, if notification might lead to physical, sexual, or emotional abuse of the minor, in such cases, Texas legislators had decided that a minor relying on a judicial bypass need not notify her parents before having an abortion.
At issue was not the question of whether Texas would allow or disallow abortions. That issue had already been decided at the federal level in Roe v. Wade in 1973, although it troubled me that unelected judges had recognized the existence of a new fundamental right that simply was not reflected in the words of the Constitution. I considered the exercise of such judicial power arrogant and dangerous in our constitutional scheme. While I regard the right to privacy important, the scope of this right is one that should be left for the people to decide through the constitutional amendment process.
No, these parental notifications cases, in my view as a judge, were not about abortion; they were about discerning the intent of the Texas legislature when it passed the parental notification statute. The Texas legislature obviously intended to permit minors to get an abortion without parental consent if certain conditions were met. Our job as judges was to determine legislative intent with respect to these exceptions. When is a minor sufficiently well informed to make the decision to have an abortion? What circumstances threaten the best interests of the minor? What level of physical, sexual, or emotional abuse would be necessary to trigger a judicial
bypass?
Some of the more conservative members of the court appeared to want to interpret the statute in a manner that would make it very difficult, if not impossible, for any minor to get a judicial bypass. I believed my colleagues wanted to impose obstacles that simply were not written into the statute and that would in essence remove the exceptions that the state legislators had voted to establish.
To be sure, I was unhappy with the Texas legislature. They had passed a law with broad, general wording (which was probably necessary to secure the votes for passage and to make the law constitutional), with the likely expectation that the all-Republican Texas Supreme Court would fill in the details with tougher conservative standards. That I was not willing to do because that was not my job as a judge.
The legislature had passed a law allowing for exceptions to parental notification, and I did not believe it was my role as a judge, nor within the purview of the judicial branch, to legislate from the bench and to rewrite the law to narrow or eliminate the exceptions. If the standards were to be changed, the legislature would have to step up, amend the statute, and be accountable at the ballot box.
While I was on the court, we decided a handful of these parental notification cases. In every case but one, I voted to deny permission to the minor to have an abortion because the minor had failed to satisfy the statute.
Although I knew Governor Bush to be pro-life, he did not try to influence my opinion in any way, nor did he weigh in on the discussion of parental notification. He never asked about the cases or even hinted to me his feelings about it—which would not have been proper—prior to the supreme court decisions.
I received not-so-friendly-fire from pro-life groups such as Focus on the Family, led by Dr. James Dobson, after I staked out my judicial positions on the parental notification cases. The critics’ contention was that I had paved the way for a minor to have an abortion without her parents knowing about it. Not true; the legislature had done that. I understood the critics’ concerns and even sympathized with their position. If I were the parent of an underage daughter seeking an abortion, I would want to know. I did not like the Texas statute, but I would not let my personal views influence my interpretation of the law.
I knew my votes on the court would cost me votes in the upcoming Republican primary election. Indeed, several of my former supporters abandoned me. I discovered that while many conservatives claim to support judicial restraint, not wanting judges to legislate from the bench, they don’t always mean it when considering issues they consider fundamentally important. Unfortunately, although I was considered a Bush insider, my votes on the parental notification cases forever marked me as an untrustworthy outsider to social conservatives, among whose ranks I counted myself.
CHAPTER 10
THE SEND-OFF
As early as 1997, opinion polls reflected that many people assumed George W. Bush would run for president of the United States. Few of us who were close to him in Austin doubted that he would run, but we understood that he did not wish to announce his candidacy until after the gubernatorial elections in 1998. When Governor Bush was reelected for a second term in a landslide, capturing nearly 69 percent of the vote, some of his closest associates began mentally packing their suitcases.
I did not—especially after he appointed me to the Texas Supreme Court. I loved my new job, so even if Governor Bush ran for and won the presidency, I was not certain I wanted another transition. Becky had already been forced to accept a different state job, having to leave her position with the Texas attorney general’s office to avoid a conflict of interest due to my now being on the court.
In June 1999, I went out to Austin-Bergstrom, our city’s largest airport, to see off George Bush for the initial Iowa and New Hampshire presidential campaign tour. Dozens of journalists were already boarding the plane, and a large crowd of Bush supporters had gathered as well. As he was moving through the crush, Governor Bush saw me and motioned toward me with his finger, “Come here.” I stepped through the crowd and made my way to the governor.
“I’m really proud of you,” I told him.
He seemed pleased to see me at the send-off, and for a moment, I thought he might be overcome with emotion. He said a quick good-bye and jetted off to win, he hoped, the presidency.
When Governor Bush announced he was running for the presidency and began campaigning, Becky and I watched the political scene more carefully because my name was on the ballot with that of Governor Bush in 2000. When it came time for me to run in the Republican primary, although I had been selected by Governor Bush as his counsel and appointed to two statewide offices, I quickly discovered that my Spanish surname stirred suspicions in certain Republican strongholds that I was a closet Democrat. That created challenges during the Republican state primary election. Governor Bush indirectly came to my rescue by allowing my campaign to use segments of his speech at my supreme court investiture ceremony to create a moving television ad, using his words to endorse me as a member of the court. I did no other major advertising during my campaign.
Still, I campaigned hard, knowing that I was in an uphill battle. Gonzales was not a name that Republicans were accustomed to seeing on their primary election ballots. Texas is a huge state, and many Republicans outside of the major metropolitan areas were unfamiliar with me. Making matters even more unpredictable, my opponent was actually a Democrat running in the Republican primary. Texas Democrats had kept a strong grip on the Hispanic vote, and despite George Bush’s best efforts, many Hispanics were slow to leave their traditions. So it was not a given that I would win my primary election.
Our campaign focused on six main metropolitan areas—Austin, Houston, Dallas, San Antonio, Fort Worth, and El Paso—where we ran my television ad. I carried every county where we aired the ad and lost virtually every county where I had no television ads. Fortunately, I had the endorsement of every major Texas newspaper and of every statewide public official, and I won my primary election.
On election day, the first Tuesday in March when seven states conduct primary elections, the state Republican party asked me to be on stage with Governor Bush and other statewide Republican officials at an election celebration and rally that night. I met the governor in the hallway on the way to the stage, and he hugged me in front of several other state officials. “I told my daughters to vote for you,” he said. I knew the Bush daughters were voting for the first time. “Thank you, governor,” I said with a smile.
In the general election, I was opposed by a Libertarian candidate, so my Republican supporters and I felt confident that I’d have no trouble winning that race. Nevertheless, I continued to campaign on a small scale, simply to maintain a presence with voters.
From the time Governor Bush set up a committee to explore the prospect of running for president, Becky and I knew in our hearts that if he won and he wanted us to go to Washington along with him, it would be difficult to tell him no. Soon we started seeing new faces in the Bush circles. Consultants and policy experts such as Condoleezza Rice, former provost at Stanford University, visited frequently. Ari Fleischer came aboard as campaign press secretary; Josh Bolten came to help with the campaign. Andy Card, who had served in George H. W. Bush’s administration and was a trusted Bush advisor, also made frequent visits. Karl Rove, of course, had been researching a potential presidential run for several years. Our state staff continued working for Texas, but everyone knew there was a possibility they might not complete the term.
By the middle of July, after George W. Bush had clinched the Republican nomination, people began to wonder who his vice presidential running mate would be. Many insiders bandied about names such as Tom Ridge, John McCain, Colin Powell, and Dick Cheney. Because I knew the governor valued loyalty so highly, I immediately ruled out John McCain. A war hero who had survived being tortured in Vietnam prisoner of war camps, McCain understandably was his own man. Powell, too, might not relish being number two, since he was a four-star general and a former chairman of the Joint Chiefs o
f Staff, and used to being in charge. Dick Cheney had served in Governor Bush’s father’s administration, but he was much older than the governor. If I were betting, I would have put my money on Tom Ridge, the former governor of Pennsylvania.
“I think it will be Cheney,” Joe Allbaugh confided to me. Joe felt the governor resonated with Cheney’s direct, no-nonsense approach to matters.
I was wrong and Joe was right. On July 25, 2000, at a festive campaign event held at Austin’s Erwin Center, the largest arena on the campus of the University of Texas, Governor Bush announced that Dick Cheney would be his running mate.
It was at that event that I first met Josh Bolten. A graduate of Princeton with a law degree from Stanford, Josh had worked in the legal offices of Goldman Sachs before signing on with George W. Bush. “I’ve heard a lot about you. The governor has spoken often of you,” Josh said as we shook hands.
“Oh, that’s nice to hear,” I responded. “I’m glad people are saying nice things about me.”
“I didn’t say that he said anything nice about you.” Josh held a serious expression for a moment and then broke into a broad smile. That was my first experience with Josh’s sardonic sense of humor, and as I was soon to discover, it was typical of his personality. We both laughed aloud. I knew immediately that Josh and I were going to get along just fine. I grew to really admire Josh and value his counsel.
True Faith and Allegiance Page 9