The Blog

On the Right Side of the Law

Hopwood attorney Steven Wayne Smith is running for the Texas Supreme Court. Voters like him, but the establishment is backing away and an ugly smear is in play.

12:00 AM, Sep 23, 2002 • By BETH HENARY
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Beneath the surface, this year's key elections in Texas are all about race. The top of the Democratic ticket has been called a racial "dream team": If Tony Sanchez and Ron Kirk win in November, they will be the state's first Hispanic governor and African-American senator, respectively. Down ballot, Republican supreme court appointees Dale Wainwright and Wallace Jefferson are bidding to become the first African Americans elected to the Texas high court.

Race has even become a factor in a hotly contested supreme court race between two whites, a Republican man and a Democratic woman. In the Republican primary in March, Austin solo practitioner Steven Wayne Smith dumbfounded the state GOP by beating party favorite and appointed incumbent Xavier Rodriguez, 54 percent to 46 percent. Pundits decried the anti-Hispanic bias of the Republican electorate, but the voters' prejudice seems ideological, not racial. Other minority judges won Republican primaries, and Hispanic Republicans hold statewide office. The fact is, Rodriguez spent $558,000, called himself a moderate, and lost; Smith spent just $9,500, called himself a conservative, and won.

It's Smith's record on affirmative action, not his ethnicity, that gives his candidacy salience. In the early 1990s Steve Smith filed a lawsuit against the University of Texas law school on behalf of white applicants who argued they had been denied entry because the school used affirmative action to bolster minority enrollment. Smith won the case, Hopwood v. Texas, which was decided in the 5th U.S. Circuit Court of Appeals and let stand by the U.S. Supreme Court. The case ended racial preferences in state university admissions. In this year's primary campaign, Smith trumpeted his role in the Hopwood decision, which is extraordinarily popular among conservatives. His campaign manager, David Rogers, was one of the Hopwood plaintiffs. The attorney who led the university's defense, meanwhile, Harry Reasoner, supported Rodriguez in the primary and now supports Smith's Democratic opponent.

"Racial preferences is just an issue that resonates with Texas voters," says Rogers.

But as November nears, the Smith campaign has barely more cash than it spent on the primary and is short of endorsements. Groups such as Texans for Lawsuit Reform and others that normally endorse Republicans are supporting Smith's opponent, Margaret Mirabal, a respected judge on the state appeals court in Houston. Sources close to Smith feel the state GOP hasn't really warmed to him for a variety of reasons. Although the party claims to support all Republicans with equal enthusiasm, that hasn't translated into help for Smith.

Until early September, the issue of affirmative action remained under the radar. Then Smith dropped a bombshell. He was suing Margaret Mirabal, her campaign, and her manager for libel. In the suit, Smith alleges that Mirabal's campaign circulated an e-mail that called Smith a "racist" and a "bigot." He says the incident hurt his standing with Hispanics. Mirabal dismissed the lawsuit as "frivolous . . . an election-year stunt," and denied the charge. She thinks he is libeling her.

The e-mail came from Austin attorney Marci Morrison, a former classmate of Smith's at the UT law school who disagrees with Smith on affirmative action. Just after the March primary, she e-mailed Margaret Mirabal about a conversation she'd had with Smith. She gathered he had filed Hopwood out of "bitterness" for not receiving "special treatment" like "the blacks, Mexicans, and Jews."

"I was stunned and told him that he sounded like a Nazi," Morrison wrote. "Not only do I not believe that Steve is qualified for a position on the Supreme Court, but I also believe him to be a racist and a bigot."

Mirabal admits she forwarded the e-mail to one person, who made some inquiries about Morrison in Austin. But with 14 years of experience on the bench, Mirabal prefers the high road on the campaign trail. "I do not like to run a negative campaign," she insists.

One way or another, the message quickly spread in political circles, although the media reported it only after Smith brought it up at a debate.

One local Republican activist who was sent the e-mail, Virginia Hermosa, is an Austin attorney and chairman of the Republican National Hispanic Assembly chapter in Travis County. The e-mail, forwarded to her by a friend, upset her. It came originally from someone she identified as a "former court of appeals justice" and apparently had been forwarded many times over.

"As a [Hispanic] community, we tend to be very passionate," she said. Hispanic Republicans approached her with concerns about Smith's candidacy, and she felt any allegation of racism was worth investigating.