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Ruth Bader Ginsburg – may she rest in peace while the nation goes to battle over her replacement – once said: “When I’m sometimes asked, ‘When will there be enough [women on the Supreme Court]?’ and I say, ‘When there are nine,’ people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”
Fifteen years ago the powerful 4th Court of Appeals, based in San Antonio and covering 32 counties from Laredo to Kerrville, became the first appellate court in the nation comprising entirely women. Since then only one man has been elected to that court. Ironically, he had earlier starred as the worse-than-clueless boss handling an egregious sexual harassment scandal. More on that below.
The court was established by the Legislature in 1892. It became all-female in 2005 when Gov. Rick Perry appointed Rebecca Simmons to replace Paul Green, who had been elected to the Texas Supreme Court. Simmons had earlier run against 4th Court Chief Justice Alma Lopez, losing by only four points. Lopez welcomed Simmons to the court.
“You will see a much harder-working court,” Lopez told the San Antonio Express-News. “Women look at cases much harder and differently than men. Women are stricter on the law, and we concentrate more on our work. And we’ll probably get along much better.”
Simmons responded in kind: “These are all very hard-working women and capable jurists. That’s what got them [to the appeals bench], certainly not their gender.”
In 2005 there may have been some truth to that last sentence. But now, and some to notable extent then, their gender has a great deal to do with it – just as previously the men’s gender had a great deal to do with it. But it isn’t some sort of reverse sexism. Voters aren’t choosing less-qualified women over more qualified men. They don’t know anything about any of the candidates’ qualifications.
The reality is that choosing our court of appeals justices from 32 counties by election is even more of a lottery than choosing our Bexar County judges by election. My experience of watching the courts here for many decades is that voters did a pretty good job of discerning judicial candidates until we neared or exceeded a million people. Bexar County is now at above 2 million.
It has for some time been impossible for judges to mount election campaigns impactful enough to cut through the clutter of all the other races on the ballot. And it’s equally impossible for citizens to research judicial candidates. Few lawyers would tell you they know enough about all the candidates to make a truly informed decision.
If that’s true for Bexar County, it’s far more true for judges running in 32 counties. There is no way for people to vote on the basis of knowledge. Some don’t vote at all in the down-ballot races. Others are left to choose based on three pieces of information: political party, race or ethnicity, and gender.
In 2018, five Democratic women ran unopposed in the primary for openings on the 4th Court. All five defeated Republican opponents in November. Their vote totals ranged from 52 percent to 54 percent, an indication that voters didn’t know of any significant differences in quality among them.
The dominance of Democrats on the 4th Court is relatively new, but the dominance of women isn’t. In 2006, three Republican women beat three Democratic men. One Republican man, Steve Hilbig, won. His opponent was male. It was the closest victory margin, just 2 percent, less than half the margin in the next closest race. Had he run against a woman he well might have lost.
The irony of Hilbig being the only man elected to the 4th Court since 2000 is that as Bexar County district attorney in the 1990s his office was embroiled in a protracted sex harassment scandal. A female investigator in the homicide division sued for retaliation after reporting vicious verbal harassment by her supervisor.
When she filed her complaint within the office, Hilbig appointed a high-level committee to investigate. The committee filed a report indicating that the woman’s boss had aggressively harassed not only her, but other women as well. The report said the others didn’t file complaints because they believed they would lead to retaliation and no action from Hilbig.
Hilbig’s response was to give the perpetrator a three-day suspension and to transfer the woman to another, less prestigious department. Her lawyer would discover that the boss’s suspension wasn’t documented in his personnel file.
Hilbig spent more than $500,000 for outside lawyers not only to fight the lawsuit (which was settled for $186,000), but also to keep under seal a copy of his deposition in the case and other documents. He lost that fight, too. Among the things disclosed was that he had thought it funny to pretend to be pulling up his zipper as female prosecutors left his office.
After one term, Hilbig lost to Democrat Luz Elena Chapa.
One could come to the cosmic conclusion that Hilbig’s brief appearance was only to remind voters that, all other things being equal or unknown, choosing a woman over a man for judicial office is not entirely without reason.
One last point. Ginsburg noted: “But there’d been nine men, and nobody’s ever raised a question about that.” As for as I can tell, nobody has raised an eyebrow about South Texas’ all-female court either. Other than a few articles at the very beginning, the gender makeup has drawn little public comment, and lawyers I’ve talked to say they haven’t noticed any substantial change in the decisions made by the court, at least based on its gender composition.