February 21, 2019
Brett Busby, a Republican judge in Houston who lost re-election in November in a Democratic rout of urban-area appellate courts, has been appointed to the Texas Supreme Court, Gov. Greg Abbott announced Thursday.
Busby, a former U.S. Supreme Court clerk, had served on Houston’s 14th Court of Appeals since 2012. His appointment, which is subject to Senate confirmation, will last through 2020, when his seat would be up for election.
Busby would replace Justice Phil Johnson, who announced in November that he’d step down after 13 years on the nine-member, all-Republican court. Johnson’s news came just days after an election that saw a thrashing of Republican appellate judges across the state, particularly on courts that serve large urban areas. Several of those judges applied for the Supreme Court post.
“I have a deep respect for the justices who serve on the Supreme Court and am looking forward to serving alongside them,” Busby said in an interview with The Texas Tribune. “I’m honored that the governor has appointed me to serve and look forward to the confirmation process in the Texas Senate.”
In November, Busby — who had Abbott’s endorsement — lost to Democrat Jerry Zimmerer by less than 3 percentage points in a sweep that saw four major state appellate courts flip to Democratic majorities.
Abbott, a former Texas Supreme Court justice, said, “Brett’s respect for the Constitution and his understanding that judges say what the law is, not what they would like it to be, will serve the people of Texas well as he ascends to our highest court.”
A graduate of Duke University and Columbia Law School, Busby clerked two decades ago for U.S. Supreme Court Justice Byron White, a John F. Kennedy appointee who often sided with the court’s conservative wing and was known for evading easy ideological labels. Busby, who is well respected in Texas legal circles, has worked in private practice and as an adjunct professor at the University of Texas Law School and also had leadership positions with the Texas Bar and other statewide legal groups.
He is a member of the Federalist Society, a prominent conservative legal group known for its influence on judicial nominations nationwide. A delegate to the 2010 Texas Republican Convention who has had a leadership role in the Harris County Republican Party, Busby has contributed to Texas Republicans and helped fundraise for the presidential campaigns of John McCain and Rudy Giuliani.
In his application to the high court asking Busby to describe a judge whose work he admires, he chose the late Supreme Court Justice Antonin Scalia for his “disciplined development of the interpretive methods of textualism and original public meaning.”
“I also admire Justice Scalia’s commitment to our adversary system of justice, which generally depends on parties to frame the issues for decision and assigns courts the role of neutral arbiter of matters that parties choose to present,” Busby wrote in his November application for the high court post. “This system guards against a judge becoming an advocate by deciding a case based on an issue not presented.”
In a letter recommending Busby for the high court, former colleagues wrote that he is “deeply committed to the conservative movement,” praising his work for the Federalist Society, the Alliance Defending Freedom’s Blackstone Fellowship and the First Liberty Institute.
“He worked on cases that gave him opportunities to stand up for conservative principles, advocating broad First Amendment protection for religious liberty and political speech, defending private property rights, and fighting against excessive jury verdicts using our tort reform laws,” wrote three attorneys from Bracewell & Giuliani LLP, where Busby worked from 2008 to 2012.
The appointment comes as the Texas Senate finds itself in the midst of a rare confirmation battle. The governor’s appointees typically sail through the upper chamber, but this year, David Whitley has faced steep opposition to his appointment as secretary of state. Busby’s nomination — which would require a two-thirds vote from the Republican-majority Senate — could hand Democrats an important bargaining chip. Republicans, who hold 19 seats of the chamber’s 31, would need at least two Democrats to vote to confirm Busby.
Just two women sit on the high court, Justice Eva Guzman and Justice Debra Lehrmann.
Disclosure: The State Bar of Texas, the University of Texas at Austin and Bracewell LLP have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.