In the three months since the worst election night for Texas Republicans in a generation, four of Abbott's last six judicial appointments to fill key court vacancies have been former Republican judges who lost their 2018 races. One was elevated to the Texas Supreme Court just weeks after being voted out of a lower court in Houston.
Texas is among a handful of states that hold partisan elections of judges from lower-level district courts all the way through the highest appeals courts. The ability to fill vacancies is one of the strongest tools of the governor's office.
Abbott's recent appointments have stoked criticism from some Democrats that Abbott is thumbing his nose at voters. They've also questioned why Texas Republicans are sounding sudden alarms about partisan waves threatening judicial integrity. That includes Abbott, himself a former judge, who in February tweeted that the makeup of courts shouldn't be left "to the political winds of the day."
Four days later, Abbott appointed Brett Busby to fill a state Supreme Court vacancy. The former attorney for Christian legal groups and member of the conservative Federalist Society had just lost his re-election bid to a Houston appeals court.
"The people have said they don't want these judges," said former Texas Court of Criminal Appeals Judge Larry Meyers, who served 20 years on the bench as a Republican, then switched parties and lost in 2016.
Democrats in November flipped majorities on four influential appeals courts with jurisdiction over some of the state's largest metropolitan areas. Abbott's office dismissed the election results as "immaterial" to the appointments and said the judges nominated were selected on the merits of their judicial record.
"The governor was elected statewide to make decisions on appointments. I'm honored that he chose me and I look forward to serving," Busby said Thursday. In some cases, Abbott appointed judges who have lost multiple elections to Democrats.
Judge Greg Perkes was appointed Jan. 28 to the 13th Court of Appeals in South Texas. That put him on the same bench where he'd been removed by voters in 2016, and rejected again in 2018. Perkes will be the only Republican on the court and will serve with the two women Democrats who defeated him.
During his Senate confirmation hearing Feb. 7, Perkes was asked if he can work with his political adversaries. He said he could. "It was a hard election," in 2018, Perkes said. "Obviously I lost. All the judges on that court, including myself, are strict constructionists of the law and try to do our very best."
Judge Jaime Tijerina was appointed to a district court bench in the same border region. Tijerina narrowly lost in November to Democrat Rudy Delgado in a bid for the 13th Court of Appeals, despite Delgado being under federal indictment on bribery charges. Tijerina also was appointed to a district judgeship in 2013 and lost his election bid for that seat to a Democrat in 2014 in a landslide. Abbott then appointed Tijerina to another district bench in 2018.
Busby would have easily the most influence of all of Abbott's judicial appointments should he win Senate confirmation to the nine-member panel that serves as the state's highest court for civil matters.
A former U.S. Supreme Court clerk and 20-year appeals lawyer, Busby was elected to Houston's 14th Court of Appeals in 2012 but was voted out in 2018 in favor of a Democrat. Busby had barely returned to private practice when Abbott promoted him to the state Supreme Court, a bench with a track record as a launch pad into state politics, the federal judiciary and even the White House.
Abbott spokesman John Wittman said the governor bases his selections on judicial skill and merit. "It is immaterial how those judicial candidates fared in past elections," Wittman said. "As a former judge himself, Governor Abbott knows that judicial races are often determined by factors other than the candidate's qualifications. The primary factor that Governor Abbott seeks is the candidate's proven ability to uphold the Constitution and apply the law as written."
Unlike federal judicial positions, the state courts are not lifetime posts. All would have to campaign in 2020 if they want to stay on the job. The state nominations process rarely delivers the fireworks seen at the federal level such as the recent U.S. Senate hearings over Supreme Court nominee Brett Kavanaugh.
Democrats have been unwilling to spar over Abbott's judicial appointments, despite their complaints. They've been focused instead on blocking his nominee for the state's elections chief , David Whitley, who has come under intense criticism for using faulty data to question the U.S. citizenship of 95,000 voters.
The nominations of Perkes, Busby and Tijerina were presented to the Senate nominations committee by their local senators, all Democrats. The full Senate confirmed Perkes and Tijerina on unanimous votes last month. Busby faced few questions at his nominations hearing on Thursday and appears likely to sail through as well.
Democrats say they're being deferential to the governor's appointment powers, but not without frustration. "Clearly the governor didn't receive the memo about the election results," Texas Democratic Party Executive Director Manny Garcia said. "Courts across the state have dramatically changed. Elected officials should be responsive to the electorate."