No Comment — March 8, 2009, 9:25 pm

The Rovian Judiciary

There are 678 federal judges. Roughly two-thirds of them are Republican appointees, and roughly two-thirds of that number–around half of the total–were appointed by George W. Bush. During his presidency the appointment process was driven by an unprecedented measure of politicization, and a recent study by the University of Houston showed that the George W. Bush judges are as a group the most politically ideological and conservative of all judges on the bench. Some of those judges are outstanding figures in the profession, accorded wide respect. Others are partisan political hacks who landed a judgeship as a reward for political trench warfare. Will they be transformed when they don a black robe and call a court to order?

Today the New York Times gives us a good look at a woman who is the very model of a modern Rovian judge. Sharon Keller is the senior judge of the state’s court of criminal appeals, and she was elected to the court in the Republican wave that brought George W. Bush to power in Austin and marked the first stage of what would ultimately be the triumph of Rovian politics in Texas.

In 1998, Judge Keller wrote the opinion rejecting a new trial for Roy Criner, a mentally retarded man convicted of rape and murder, even though DNA tests after his trial showed that it was not his semen in the victim. “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program “Frontline.” “We would have no finality in the criminal justice system, and finality is important.”

Funny–I thought the criminal justice system was about some semblance of justice. For Keller and others like her, the role of “hanging judge” is cherished. Moreover, it seems to sell well in the voting booth. Keller’s conduct provoked such widespread outrage that even then-Governor Bush was forced to act. In one of his extremely rare acts of intervention in the criminal justice process (other than for the benefit of financial industry leaders who made substantial donations to the G.O.P.), Bush pardoned Criner.

Now Keller faces an ethics probe over abusive conduct that resulted in the execution of a prisoner who should have been able to argue an appeal. She’s headed for a trial on charges that she violated her duties as a judge, was incompetent, and brought discredit on the judiciary. Actual enforcement actions against judges who breach their ethical duties are, however, exceedingly rare. Keller’s is an interesting test case.

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