Capitol Chronicle

Although at first he might sound like a better candidate for the Suspicious Middle Name Department of "News of the Weird," Steven Wayne Smith is in fact the Republican candidate for the state Supreme Court, Place 4. Smith is semi-famous as the Austin lawyer who won the Hopwood lawsuit against the affirmative-action admissions system at the UT Law School (which, by the time of his suit, had already been abandoned). His efforts were doubly rewarded by then-Attorney General Dan Morales with a legally dubious but politically savvy opinion that the Hopwood decision applied to ongoing admissions programs at all state-supported Texas schools.

Smith began his casework by trolling through admissions records and recruiting as plaintiffs rejected white applicants, putative victims of "reverse discrimination," among them Cheryl Hopwood. Such ambulance-chasing is a time-honored procedure of "trial lawyers," those allegedly mercenary (and usually Democratic) fellows who clog our courts and empty our pocketbooks via "frivolous lawsuits."

Nevertheless Smith, who has never held office, is running as the "proven conservative" in his race against Margaret Mirabal, a well-respected Democrat in her 14th year on the 1st Court of Appeals. You might think that Smith, with no experience, negligible campaign funds, and lacking any major endorsements from legal colleagues or even state conservative organizations, wouldn't have a prayer.

But in fact, he's the presumptive favorite, because of his GOP affiliation, his ultra-Anglo name -- and the fact that without money or visible party support, he handily defeated incumbent Xavier Rodriguez (appointed to the bench by Gov. Rick Perry) in the Republican primary. Mirabal has received the rather embarrassed endorsements of the almost inevitably Republican Texas Association of Business, the Texas Medical Association, and even the tort-paranoid Texas Civil Justice League and Texans for Lawsuit Reform, along with those of all Democratic and most legal associations. But "Mr. Smith" remains a handy moniker in Capra-esque movies and Texas voting booths. There is every reason to believe that, come Nov. 5, the voters will make Rodriguez out of Mirabal, and the state will welcome yet another major embarrassment onto its already rather dingy Supreme Court bench.

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The Scholar Speaks

Why are the officially respectable GOP players so red-faced about Smith?

Because he doesn't just walk the Hopwood walk, he talks the Hopwood talk. While the affirmative action debate nominally concerns what constitutes a truly "level playing field," every successful effort to dismantle affirmative action has left minority citizens institutionally worse off than they were before. Smith doesn't see that as an unfortunate, temporary consequence of the inequitable education systems and other social disparities left over from centuries of racial segregation. Rather, he finds it encouraging. Smith made that plain in a recent interview with Houston Chronicle reporter Janet Elliott; he told her that minority students -- for explicit example, Xavier Rodriguez and Dan Morales -- shouldn't have been allowed into elite institutions like Harvard. (Although they might past muster at second-tier venues like the Enormous State University at 21st and Speedway.)

"Minorities go to a school that they're underqualified for and it just pools up through the whole system," declared social analyst Smith. "Dan Morales should be at UT and people that were going with me [at UT] should be at Tech and Houston, and on down the line." It's amusing to see Morales hoist on his own canard -- indeed, he told Elliott he essentially agreed with Smith, though he declined to discuss his own presumably exceptional case. But Smith appears utterly ignorant of the fact that the "objective" test scores he relied upon in his Hopwood argument do little or nothing to predict academic achievement; his crabbed notion of academic standards reflects a plantation mentality he might have unlearned if he had paid better attention in his undergraduate history classes. The candidate also trumpeted his ignorance by sneering at Rodriguez's Harvard undergraduate major of medieval history -- although by Smith's own ridiculous logic, a B.A. from UT-Arlington should know when to keep his mouth shut.

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"I'm Not a Racist, But --"

None of this would matter much if Steven Wayne Smith weren't poised to become the unworthy successor to Steve Mansfield -- the liar, fantasist, and petty crook who distinguished his service on the Court of Criminal Appeals by providing one more unvarying vote to reject death penalty appeals. Smith insists he's not a racist -- for gosh sakes, he says, he's actually played basketball with blacks and Hispanics -- although one of his UT Law classmates recalls a conversation in which she says Smith complained about "special treatment" for "blacks, Mexicans, and Jews." (Smith flamboyantly publicized and denied the accusation -- then sued the Mirabal campaign for defamation.) He knows he's not a "racist, Nazi, or bigot," he says, because he consulted the dictionary definitions of those terms and decided they don't apply to him. Now there's a finely nuanced legal mind -- his moral compass is Webster's Third International. Maybe he can use Law for Dummies on the tougher personal injury cases that land before the court.

Smith may or may not be a garden-variety racist in a personal sense -- but by the evidence of his own words he is quite clearly a new-fashioned segregationist in the institutional sense, a form of racism which, in its long-term social effects, is demonstrably worse. He says his peculiar notions of educational apartheid have "nothing to do with the race or ethnicity of the individual, only with their lack of preparedness." Yet his self-generated attack on affirmative action has made it more difficult for minority students to overcome decades of educational inequity that is no fault of their own, and has reinforced a situation that is likely to get worse before it gets better. As the Houston Chronicle's editors put it, Smith "argues that minority students deprived of a decent public school education should be additionally punished through systematic denial of opportunity to attend the best universities." With the help of feckless politicians and narrow-minded judges, that circular logic -- what Smith calls "proven conservatism" -- continues to spread as the law of the land.

If there's a silver lining in Smith's candidacy, it may be that his election would make it even more difficult to defend the decisions of an already biased court. A better result would be that if his presence on the ballot galvanizes enough opposition so that Steven Wayne Smith is roundly defeated, along with those who cravenly -- but silently -- share his literally reactionary opinions on racial justice.