Supreme Court Incumbents Face Primary Fights

For the first time since the rise of the modern Republican Party, all of the incumbent Supreme Court justices on the ballot face primary opponents, two of whom have sought, unsuccessfully, a seat on the high court before.

• SC3: Justice Debra Lehrmann faces Michael Massengale, who was elected to the First Court of Appeals, Place 8 in 2010 (70%) and was unopposed in 2012.
• SC5: Justice Paul Green faces former Rep. Rick Green, who lost the 2010 runoff for SC3 to Lehrmann, 52%-48%.
• SC9: Justice Eva Guzman faces Dripping Springs attorney Joe Pool Jr., who has lost a pair of races for the court in 2014 (28%) and 2012 (29%).

None are taking their opponents lightly. Together they have raised more than $1.5 million, as of January 21, and all three have out-raised their opponents as of that date. Massengale has raised the most ($404K) of the challengers, and he had more cash on hand ($382K) than Lehrmann ($264K).

Incumbent Supreme Court justices have won 25 of their last 27 Republican primary elections since 1998. Sixteen of them have been unopposed, and the remaining victors have averaged 61% of the vote. No sitting Supreme Court justice has been defeated in the primary since 2004, when Paul Green defeated Steven Wayne Smith, 53%-47%. Two years earlier, Smith defeated an incumbent, Rick Perry appointee Xavier Rodriguez, 53%-47%.

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First, some history.

Lehrmann and Rick Green emerged, barely, out of a six-way, open-seat primary in 2010. It was one of the closest primaries in state history. Just over 2 percentage points separated the top five candidates, and just over 2K votes separated second place from fourth. Oddly, the only candidate who wasn’t a judge finished in first place.

212,976 – Former Rep. Rick Green (18.95%)
204,779 – Debra Lehrmann, 360th District Judge (18.22%)
203,838 – Jim Moseley, Fifth Court of Appeals (18.14%)
202,750 – Rebecca Simmons, Fourth Court of Appeals (18.04%)
188,238 – Jeff Brown, Fourteenth Court of Appeals (16.75%)
111,092 – Rick Strange, Eleventh Court of Appeals (9.89%).

The six candidates combined to raise $1.29 million collectively, making this a relatively expensive race for the high court. Green ($137K) and Lehrmann ($112K) raised the least.

Brown entered the primary as the top choice in the State Bar of Texas judicial poll, and he had the endorsement of former Chief Justice Tom Phillips. Simmons had the support of the Texas Medical Assoc. PAC and was endorsed by several large newspapers. Lehrmann was endorsed by the Austin American-Statesman, not necessarily a benefit to statewide Republican candidates. Texans for Lawsuit Reform PAC made no endorsement (though it did endorse Massengale for his first run for the First Court of Appeals).

Brown’s campaign expected to have an advantage because he was the lone candidate practicing in Harris Co. Lehrmann and Moseley were expected to split the Metroplex vote. Brown did carry Harris Co. with 29% of the vote, but finished just 740 votes ahead of Green, and he had trouble rising above 20% elsewhere. Simmons won Dallas Co. with 27% of the vote, finishing ahead of Moseley (21%) and Lehrmann (17%). A little over a third of Tarrant Co. voters (34%) chose Lehrmann. Moseley (21%) and Green (17%) finished well ahead of Brown (9%) there. Simmons won Bexar Co. with 33% while the rest of the pack was tightly bunched between 11% and 15%.

Lehrmann picked up first- or second-place finishes in Bell, Collin, Denton, Ellis, Lubbock, McLennan, Montgomery, Smith and Williamson Cos. Green ran strongest in his home county, the Hill Country, East Texas and several counties today identified with strong Tea Party movements. Brown

Every candidate won somewhere. None cleared 20% everywhere. In the end, the two candidates with the least money, one of whom had the least judicial experience, were left standing.

Shortly after the primary, the Texas Medical Assoc. PAC, Texans for Lawsuit Reform PAC amd five former justices, including Phillips, endorsed Lehrmann. “She has proved to be a competent and fair jurist and has displayed the calm temperament and deliberate manner required of judges,” the PAC’s chairman said at the time. “She has an excellent reputation for diligence and integrity among lawyers, her colleagues in the judiciary and in the broader community.”

Going into the runoff, Lehrmann out-raised Green, $277K to $75K, and she had all of the key endorsements except for several grassroots conservative groups that had flocked to Green. She won the runoff by fewer than 13K votes, 52%-48%.

We believe this history is relevant to the 2016 campaign because Lehrmann’s support in 2010 arose, in large part, to the fact that she wasn’t Rick Green. This time, Lehrmann faces a single opponent with six years of appellate experience, and Green is running against someone else.

Lehrmann, a Harris Co. native, was the Tarrant Co. Dometic Relations Office’s director of enforcement prior to 22 years of service as a family law judge in Tarrant Co. She served the 360th Judicial District as a Family District Judge since 1987. After winning the 2010 runoff, she was appointed to the Supreme Court by former Gov. Rick Perry, and she won a full term in the general election.

Massengale, also a Harris Co. native, was appointed to the First Court of Appeals by former Gov. Rick Perry in 2009. He was elected to the bench in 2010 and re-elected in 2012. Prior to his public service, Massengale was a commercial litigation specialist at Baker Botts LLP.

Massengale had more cash on hand entering the campaign’s final weeks, and he has been competitive in fundraising. Lehrmann has received more small donations than Massengale, but neither total is especially insignificant for a statewide race.

Massengale’s endorsement page reads like a Who’s Who of movement conservative and Tea Party groups, plus the Texas Assoc, of Business, the Texas Medical Assoc.’s TEXPAC and Texans for Lawsuit Reform PAC. The latter three have been on the other side of primary fights in recent years, and thhis year is no exception. Eighteen sitting legislators and at least 14 sitting Republican Party national committeemen and State Republican Executive Committee members have endorsed Massengale.

Lehrmann has been endorsed by at least 12 former Supreme Court justices and a number of law firms, business interest PACs and most major newspapers. Practicing attorneys are the strongest group still on Lehrmann’s side. She won the State Bar of Texas judicial poll, 75%-25%, head-to-head against Massengale. At least 23 members of the State Republican Executive Committee and at least three legislators, including Sens. Donna Campbell (R-New Braunfels) and Jane Nelson (R-Flower Mound) have endorsed her.

We expect Massengale to do well in his home county and in areas where Tea Party and movement conservatives hold sway, which makes it likely he will perform better in the Metroplex than Lehrmann will in Southeast Texas.

We note that movement conservative groups, despite endorsing Massengale, have not yet invested much money in his campaign. Massengale counts several of these groups’ largest donors among his supporters, but they have each given $5K or less, so far.

In her runoff against Green, which occurred largely before the Tea Party’s rise to prominence in Republican primaries, Lehrmann lost Harris Co. and parts of the state where Tea Party candidates have been strong. Unlike her last race, she has lost the support of key Republican business groups. It is a tough proposition to win a Republican primary with both the conservatives and some of the most politically active business groups siding with the other candidate.

Barring unforeseen developments, we expect Massengale to defeat the incumbent.

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Paul Green has already united the legal, business and Republican leadership to take down one Supreme Court candidate they all opposed. He defeated incumbent Justice Steven Wayne Smith, who two years earlier ousted the highly respected Perry appointee Xavier Rodriguez, in 2004. Paul Green faces Rick Green in 2016.

Green was unopposed in the 2010 Republican primary. As we noted, Green lost the 2010 Republican runoff to Debra Lehrmann, 52%-48%.

Paul Green spent 10 years as a justice on the Fourth Court of Appeals in San Antonio prior to his election to the high court. Rick Green served two terms in the House of Representatives. He lost his bid for a third term in the general election 2004 to Patrick Rose, 49%-48%. The motivational speaker has kept close ties to conservative groups.

Paul Green holds significant campaign finance advantages, similar to what Lehrmann held going into the 2010 runoff. Rick Green has received campaign contributions from movement conservative groups and their donors, but the candidate himself is his largest contributor. He has given DVDs and book to supporters throughout the campaign.

Rick Green has the edge in the number of small ($500 or less) contributions, but the number is not particularly significant for a statewide race.

At least two dozen legislators have endorsed Rick Green, including 13 of the representatives who voted for Rep. Scott Turner (R-Frisco) for speaker. Agriculture Commissioner Sid Miller has endorsed the challenger. As with his 2010 race, actor Chuck Norris – famous for his title role in Walker, Texas Ranger – has endorsed the challenger.

At least 10 former Supreme Court justices have endorsed incumbent Paul Green, as has former Gov. Rick Perry. A few conservative and Tea Party activists have endorsed the incumbent, but most have sided with the challenger. Paul Green has all of the newspaper endorsements we are aware of.

Unlike Lehrmann, Paul Green has retained the support of Texans for Lawsuit Reform, other business groups and statewide associations.

In his 2010 runoff, Rick Green lost most of the state’s largest counties, but he carried Harris Co., much of East and Southeast Texas, South Texas and West Texas. He lost much of the western Hill Country and the I-35 corridor from Travis Co. northward. In order for Rick Green to win, he will need to once again take Harris Co. and turn the Metroplex counties to his favor. He also needs to rack up large margins in rural counties where Tea Party and movement conservatives do well.

Green was unable to claim a victory in a runoff race that should have amplified his movement conservative base’s vote. A larger statewide turnout probably benefits the incumbent. Qualifications still matter (See Ryan Sitton’s convincing win over Wayne Christian for RRC in 2014.). Absent unforeseen developments, we expect Paul Green to win re-election.

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Eva Guzman, the first Latina to serve on the Supreme Court, was appointed by Gov. Perry in 2009. She was elected to a full term in 2010 after receiving 65% of the vote in the Republican primary. Her opponent is making his third consecutive run for Supreme Court. He received less than 30% of the vote in his prior races.

Guzman has better than $450K more on hand than her opponent, and she has out-raised him more than 50-to-1.

Guzman has the easiest path of the three incumbents to re-election. Her opponent has no judicial experience and, more importantly, no apparent constituency or organized support. We expect her to prevail easily.