Abbott’s trust in McClure is the right move
They are the nine most powerful judges in Texas most members of the public have never heard of. They determine whether an inmate on death row lives or dies and if and when the victim of a wrongful conviction will be set free. Yet, a typical Texan is more likely to be able to name a Kardashian sister or two than a single member of this all-important appellate tribunal.
The five men and four women who make up the Austin-based Court of Criminal Appeals, Texas’ highest court for criminal matters, elected to six-year terms on a statewide level, toil in near obscurity. The court becomes news only with its rare finding a defendant is actually innocent or when it is reversed by the U.S. Supreme Court.
Unlike a prime-time presidential nomination to the Supreme Court, a gubernatorial appointment to the Court of Criminal Appeals is a blip on the radar, a brief blurb buried alongside that day’s winning lottery numbers. So when Harris County Criminal District Court Judge Jesse McClure was recently appointed by Gov. Greg Abbott to fill the seat left open by the retirement of Judge Mike Keasler, chances are you missed it. As a criminal lawyer who has closely followed the Court of Criminal Appeals and handled close to 300 cases before it in the four decades since I worked there as a judicial law clerk, I am of the opinion that McClure’s selection is consequential for a number of reasons.
In the years following my clerkship, the court was a triple crown of judicial homogeneity: all male, Democratic and white. It stayed that way until 1990 when Judge Louis Sturns was appointed as the first African American member before he was defeated that fall by Judge Morris Overstreet, the first African American to win statewide office. Fortunato “Pete” Benavides, the first Hispanic Court of Criminal Appeals judge, was appointed in 1991, unseated the following year, and later appointed to the U.S. Fifth Circuit Court of Appeals where he has served with distinction.
First and foremost, McClure’s appointment fills a significant gap on the Court of Criminal Appeals’ canvas that has existed for over two decades: the absence of an African American jurist on the state’s highest criminal court. The court is still not fully representative of the 29 million Texans over whom it wields its immense power. Tellingly, the court has not had an Hispanic judge since Judge Elsa Alcala did not seek re-election in 2018. With this appointment, however, perhaps we are moving in the right direction.
Moreover, McClure’s personal backstory distinguishes him from his colleagues and will hopefully provide some much-needed balance to a tribunal long regarded as pro-prosecution. McClure began his career as a civil litigator before becoming a trial prosecutor in Tarrant County. After spending a brief time as an attorney with the Department of Homeland Security, McClure was a special prosecutor for the Texas Department of Insurance embedded with the Harris County District Attorney’s Office.
As one of only two Court of Criminal Appeals judges who logged time as a trial prosecutor, McClure has no doubt seen that unethical prosecutors, incompetent defense attorneys and over-reaching trial judges are a terrible trinity giving rise to fundamentally unfair trials that produce unreliable results. While perhaps not as willing to reverse a conviction as an appellate judge who came of age as a defense attorney, McClure’s lack of experience as an appellate prosecutor is an asset and not a liability. It has been my experience that at least three of the five judges who spent time as appellate prosecutors are far more likely than trial prosecutors to rule in the state’s favor, especially based on procedural nuances unrelated to the merits of a defendant’s claim. McClure takes his seat on the court free of this apparent affinity.
Of course, judicial appointments don’t always lead to the outcomes we imagine. As President Dwight Eisenhower famously said of Chief Justice Earl Warren and Justice William Brennan, two judicial legends who did not turn out exactly as Ike hoped they would, “My two worst mistakes are sitting on the Supreme Court.” I don’t always agree with Abbott. But I do believe his nomination of McClure to the Court of Criminal Appeals is a lock that accomplishes what every NBA general manager hopes to do with a lottery pick — making his franchise immeasurably stronger.