The Texas path to the Governor’s Mansion or the U.S. Senate for decades has followed two paths: First, be wealthy. Second, win election to a lower state office before running for higher office.
As U.S. Senator Ted Cruz launched his bid for president this week, I was struck by the idea that there is a new third path: the unelected post of Texas solicitor general, an office that did not even exist before 1999.
Cruz’s 2012 victory in the Senate race marked the first time in almost five decades that a Texas politician has won high office without following one of those two traditional paths. College professor John Tower won a special election to the U.S. Senate in 1961, and John Connally jumped from Secretary of the Navy in 1962 to the governor’s office.
The Texas solicitor general argues cases for the state on appeal, including before the 5th Circuit Court of Appeals and the U.S. Supreme Court. That job was Cruz’s from 2003 until he resigned in 2008. So who have been the solicitors general who have followed Ted Cruz in office?
Cruz’s most immediate successor under then-Attorney General Greg Abbott was James C. Ho. During his two-year tenure, Ho defended the University of Texas against legal challenges to its affirmative action admissions system. Ho also defended the state’s fee on strip clubs, known commonly as the Pole Tax. As a private attorney in Dallas, he was among a bipartisan group of lawyers last year who asked that criminal charges against then-Governor Rick Perry be dismissed. In a Texas Lawyer piece last year, Ho argued that state appellate lawyers are coming to dominate state politics.
Media coverage of this transition has focused largely on political trends. The press has noted, for example, that incoming Governor Greg Abbott has hired several long-time aides from the Attorney General’s office—while soon-to-be Attorney General Ken Paxton is poaching from the staff of U.S. Senator Ted Cruz.
But that coverage misses an important legal trend. The top legal positions in government are increasingly drawing from one particular specialty—appellate litigators—and from a narrow band of that specialty at that.
Few legal jobs are more demanding than counseling a powerful political official. These lawyers must provide substantive advice and strategy in the most difficult areas of constitutional and public law—matters that often lack clear precedent. The world is scrutinizing and questioning their every move. And the pace is unrelenting. Virtually every major legal issue on their desk presents a perfect storm of big stakes, powerful constituencies and ambiguous law.
Following Ho was Jonathan F. Mitchell, who now is on the University of Texas law school faculty. Mitchell had some of the hottest cases in recent memory. He defended the abortion law that Wendy Davis tried to filibuster to death. He also defended the state’s voter identification law, as well as the state’s constitutional prohibition on same-sex marriage. As Pamela Colloff reported in Texas Monthly, Mitchell argued to the 5th Circuit that the state’s ban on same-sex marriage was valid because of “the biological reality that same-sex unions cannot produce offspring.”
Our newest solicitor general, Scott A. Keller came to Attorney General Ken Paxton’s office directly from Ted Cruz. From January 2013 until December, Keller was the chief counsel in Cruz’s Senate office. He has quickly gone to bat for state’s rights. In this case, the right of the state to reject a rebel battle flag license plate sought by the Sons of Confederate Veterans.
“The state of Texas etches its name onto each license plate and Texas law gives the state sole control and final approval authority over everything that appears on a license plate,” Keller said. “The First Amendment does not mean that a motorist can compel any government to place its imprimatur on the Confederate battle flag on its license plate.”
This was not Keller’s first visit to the Supreme Court. The University of Texas law school graduate spent a year clerking for Justice Anthony Kennedy.
Whether any of these young lawyers – or any of those who preceded Cruz – will ever go into politics is unknown, but Cruz has cut a new upward path out of the solicitor general’s office.
The wealthy class of political ladder climbers has included governors Dolph Briscoe, Bill Clements and George W. Bush and U.S. Senator Lloyd Bentsen. Although he fell short of the top rings, former Lieutenant Governor David Dewhurst also fell into this category. Although Briscoe and Bentsen held a lower office, their wealth played the largest roll in their ascendency, and Bush had the advantage of being a former president’s son.
The political path to Texas highest offices in the past has included attorneys general John Cornyn, Mark White, Price Daniel and Allan Shivers; lieutenant governors Rick Perry and Preston Smith; treasurers Ann Richards and Kay Bailey Hutchison; and congressmen Phil Gramm and Lyndon Johnson.
Sorry, George P. Bush, the Texas General Land Office has not been a springboard to higher office. Just look at the careers for former commissioners Jerry Patterson, Garry Mauro and the late Bob Armstrong. One former commissioner, Bascom Giles, spent three years in prison as part of the 1955 veterans land scandal. Sure, that David Dewhurst guy went from the land office to lieutenant governor, but Dewhurst’s ascent had a lot more to do with being a millionaire than using the land office as a launch pad.
There’s still the possibility, Commissioner Bush, that the son of a president path will work out – unless former Solicitor General Ted Cruz gets in the way.