Texas Attorney General’s office has been instrumental in laying down a nationwide conservative legal framework

A Texas Tribune series takes a deep dive into how the office has developed into a formidable power center, challenging Democratic administrations and federal bureaucracy alike.

By Shelly BrisbinAugust 2, 2023 12:36 pm, ,

Three men have occupied the Texas Attorney General’s office in the last 25 years: John Cornyn, Greg Abbott and Ken Paxton. Each of them and the lawyers hired have aggressively advanced the cause of legal conservatism in Texas.

They’ve also built a power center in opposition to Democratic administrations and the federal bureaucracy. And after their time in Austin, the office’s former lawyers have expanded that influence, taking key spots on the federal bench.

This is the narrative that Texas Tribune reporter Eleanor Klibanoff tracks in a three-part series on the outsized role of the Texas Attorney General’s office in advancing a conservative legal agenda in Texas and beyond. She joined Texas Standard to discuss. Listen to the interview above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Why did you want to look at the Texas Attorney General’s Office in this context in particular? What was it that got you asking questions and what specifically?

Eleanor Klibanoff: You know, we sort of started this project actually at the other end. We started by looking at the federal judges that were appointed under President Donald Trump.

You know, one of those judges, Matthew Kacsmaryk at Amarillo, has gotten a lot of attention for his role in the abortion medication case. We thought, “you know, Texas got more new federal judges than any other state. Who are these people?”

We started looking into their resumes and noticed how many of them had come up through the Attorney General’s Office and the Solicitor General’s Office within that office, and what an impact that office had made and sort of started reverse engineering. How did we get here?

We should point out the solicitor’s office is typically kind of an elite group of attorneys that tend to literally argue the cases in the courtroom all the way up to the Supreme Court, right?

Yes. They handle all the appellate cases. So all the cases on appeal, sort of once they get out of the trial court phase, and that’s sort of where a lot of the legal philosophy comes into play and at the Fifth Circuit Court of Appeals in New Orleans and all the way up to the Supreme Court in D.C. 

You know, you call the Texas AG’s office a kind of “conservative war machine.” Could you explain how this has been built out? This precedes recent court appointees or recent presidential appointees to the court? Certainly, we’re talking about going back to the early 2000s, right? 

That’s right. Yes. And I mean, this has been building for about a quarter century now.

But when we talk about it as a “conservative war machine,” what we mean is right now we’ve got a Democratic president, obviously we’ve got a Republican in the Texas Attorney General’s Office. Any time the Biden administration does sort of broadly anything that may have an impact on Texas – from environmental regulations to immigration policy to efforts to shore up abortion access nationwide – the state sort of has this machine in place where they immediately file a lawsuit.

They assemble a multistate coalition of red states. They file, you know, sort of these conservative legal arguments in front of a friendly federal judge – most cases, a judge appointed by President Donald Trump – they get that judge to grant a nationwide injunction blocking the policy from going into effect. And then eventually it will go up to the Fifth Circuit U.S. Court of Appeals in New Orleans, which is very conservative – became even more conservative under Trump with these appointees, many of whom worked in the attorney general’s office – and it may eventually get up to the Supreme Court.

You know, recently Texas has had bad luck in front of the Supreme Court, but that is a process that can take years. And so they’re managing to sort of block really anything the Biden administration does that they don’t like by virtue of at least delaying it.

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But I think the point that you’re making is that Texas appears, at least from the legal standpoint, to be in it for the long game – that it doesn’t seem to be always so much the merits of a particular case that they may be bringing to the court at any given time. The bigger issue is, from what I understand, that the point that you’re making is that there is now a kind of legal infrastructure that has been built up over the years of subsequent cases that have, at least in theory, broken Texas’s way, if not in terms of the decision on the merits.

I mean, I think that’s definitely a way of framing it. Absolutely.

And I think that the thing that gets the headlines is, you know, “I go into work, I sue the federal government, I go home.” People think blue versus red, right? “I want my attorney general suing the president, who’s from the opposite party.” But a lot of this was happening on a much quieter, quieter scale.

You know, the arguments they were advancing in court, the sort of precedents that they were building, the novel legal theories they were testing out even when they lost these lawsuits were sort of shifting the nation’s legal apparatus to the right slowly so that once they got, you know, friendlier judges in, it was already sort of primed for those judges to start ruling in Texas’ favor.

Well, something else – and you’ve touched on in the course of our conversation – but one of the legacies of the AG’s office is the number of alumni – people who have served in that office – who’ve gone on to become federal judges. Deciders – and the outsized role that they’ve played in hearing some of these cases with some novel and certainly conservative legal theories behind them.

That’s right.

And, you know, I think so many of these alumni of the attorney general’s office being appointed to the federal bench… You know, no one I’ve talked to feels like, “oh, these judges will just see that Texas is suing and automatically rubber stamp their lawsuit.” All of these judges have extremely good reputations for being just really, really smart, educated legal thinkers.

But the idea is that these people who came up through this legal philosophy now sit on the bench where Texas will bring suits that reflect a similar legal philosophy. So they sort of tend to see these thorny issues the same way. And that’s, I think, what has some court watchers concerned that we’re about to see the judiciary move in one direction towards one legal philosophy pretty quickly.

Can you give an example of the sort of thing that you’re talking about there?

I think the most high-profile example that comes to mind is this case in front of Judge Kacsmaryk about mifepristone, an abortion inducing drug. But Judge Kacsmaryk actually heard another case brought by Jonathan Mitchell, former solicitor general, concerning whether or not minors in Texas can access confidential contraception through a federal program that’s existed since the Nixon administration. And Jonathan Mitchell advanced this legal theory that basically said Texas parents have parental rights that should sort of supersede this federal program. And Judge, Kacsmaryk agreed.

And now, you know, the case is going to move through appeals. It’s going to go to the Fifth Circuit. But for right now, these clinics that have been providing confidential contraception to teenagers in Texas have started requiring parental consent, which is a really significant change that I think has sort of gone under the radar.

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