Statesman weighs in on whether judicial votes should be public

The Statesman, rather than trying to minimize the role of politics in the judiciary, seems to take Senator Watson’s basic argument from the committee hearing — because our judicial elections are so political, we should have detailed information about every vote cast.

If the bill becomes law, I’ll be happy to put together some tools for practitioners to make sense of the new flood of petition-stage data.

But the cynic in me hopes that the bill dies without vote in the House committee (the legislative equivalent of having your petition denied on the order list) or, if it passes, that it does so by voice vote, consent calendar, or some other legislative device that obfuscates individual votes on less contentious legislation to speed things along. A little dose of irony never hurt anyone.

Cross-appeals: Is the federal rule better?

Over at Todd Smith’s Texas Appellate Law Blog, he suggests that Texas consider a version of Federal Rule of Appellate Procedure 28.1, which consolidates the briefing for cross-appeals.

Having been involved in cross-appeals under both federal and Texas state rules, I can say each has its advantages. But the biggest advantage of the federal rule — one that may not be obvious until you’ve lived it — is that the briefs are not filed simultaneously.

Consider the alternative. In a Texas cross-appeal, the two sides proceed on separate, simultaneous tracks. Each files an appellant brief on the same day, when neither yet knows how the other side will frame the basic issues in the case (or even which issues will be in play). (( This also means the court of appeals will get dueling presentations of the facts and procedural history. You can end up with four fact sections — each side presenting its own and then later responding to perceived misstatements in the other. )) This shadow-boxing continues into the second round, as each side has to file its second brief in the case without yet knowing how the other side will respond its first.

The result can be far less clash (to use an old debating term) than you’d like to have in a cross-appeal, especially where the cross-issues are intertwined.

As the state rules about cross-appeals evolve, I hope that they (like the federal rules) place more importance on developing a meaningful clash of arguments than creating a rigid equivalence between the sides.