Karl Rove and the rise of judicial hyper-politics

By Tom Baxter

In 1994, I traveled to Texas to write about George W. Bush’s challenge to incumbent Gov. Ann Richards, and stopped by the Austin office of Bush’s confidante and consultant, Karl Rove.

Rove was happy to talk about the governor’s race, but what he really wanted to show me, a political writer who covered races across the South, was the ad he’d just cut for Perry Hooper, a Republican candidate for the Alabama Supreme Court.

They have tough ads in Alabama, but nothing like this had ever been seen in a judicial race. An actor portrayed a lawyer with a thick Southern accent, questioning Democratic incumbent Judge Sonny Hornsby over the phone about a campaign contribution request he’d received while he had a case before the court. Rove positively beamed when he showed me the tape.

This is a long way to get around to talking about what everybody else is talking about, but many threads connect the Brett Kavanaugh nomination battle and last week’s Senate hearings with that moment years ago.

Bush’s victory over Richards that year was his first long step toward the White House, where Rove and Kavanaugh worked together on a number of issues. Last week, former President Bush was making calls to senators on Kavanaugh’s behalf. The governor’s race masterminded by Rove also cemented to this day the GOP’s lock on the Texas governorship.

The race Rove ran for Hooper also had profound implications — in some ways it foreshadowed today’s politics even more than the one he ran for Bush.

In a sort of warmup for the 2000 presidential election, the judicial race came down to a handful of votes and an intensely disputed recount. It ultimately was decided in Hooper’s favor by the U.S. Supreme Court, nearly a year after the election. Rove had previously run a couple of judicial races in Texas which had broken new ground in the way they were politicized. The Hooper race and its dramatic aftermath was a brash announcement to the rest of the country that races which until then had been only mildly political could now be intensely political.

As if to certify that he had let the genie out of the bottle, the candidate Rove supported when Hooper retired four years later was defeated by an even more politicized candidate: Roy Moore. Hold that thread in mind.

The analysis of how decorum has broken down in the U.S. Supreme Court nominating process usually begins with Robert Bork and moves through Clarence Thomas to the present, sorry state of events. The 1994 Alabama race deserves more attention, because the venom which has been injected into judicial politics starts at the state level.

Last week on Fox News, Rove worried that the politics of the hearings weren’t going Republicans’ way.

“This thing has become a Democrat cause célèbre,” Rove said. “It helps them with the electorate, it keeps the focus on something they want. And if they succeed in delaying it, so much the better, but even if they don’t, they occupy valuable space in the weeks leading to the midterm election.”

Maybe Rove is still thinking a little about Roy Moore, and the way judicial politics can sometimes backfire. Some early polling lends weight to his concerns, but we’ll have to wait until November to know. What seems without question is that the hearings produced as clean a cleavage between red and blue as any news event in memory. Those who oppose Kavanaugh’s appointment believed his accuser, Christine Blasey Ford, and those who favor it believed Kavanaugh, almost without exception.

On Monday the eight-member U.S. Supreme Court heard arguments in Mount Lemon Fire District v. Guido, which tests whether a small town fire department must comply with the Age Discrimination in Employment Act, and Weyerhauser Co. v. U.S. Fish and Wildlife Service, which is about how far the FWS can go in designating private land as critical habitat for an endangered species.

There are political aspects to both these cases, as there are with nearly every case that makes its way to the highest court in the land. But there are no clear red and blue lines, only fine but critical distinctions in the law. A selection process which produces such stark divisions seems dangerously off course.

Tom Baxter has written about politics and the South for more than four decades. He was national editor and chief political correspondent at the Atlanta Journal-Constitution, and later edited The Southern Political Report, an online publication, for four years. Tom was the consultant for the 2008 election night coverage sponsored jointly by Current TV, Digg and Twitter, and a 2011 fellow at the Robert J. Dole Institute of Politics at the University of Kansas. He has written about the impact of Georgia’s and Alabama's immigration laws in reports for the Center for American Progress. Tom and his wife, Lili, have three adult children and seven grandchildren.

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