By POLLY ROSS HUGHES
Copyright 2004 Houston Chronicle Austin Bureau
May 5, 2004, Page 25A

AUSTIN -- Scott Brister, who once posted the Ten Commandments in his Houston courtroom and was recently appointed to the Texas Supreme Court, drew fire from the Senate Nominations Committee on Tuesday.

Gov. Rick Perry's nomination of Brister was ulti mately approved by the committee, 5-2, but only after intense grilling from his opposition.

Democratic Sens. Gonzalo Barrientos of Austin and Juan Hinojosa of McAllen demanded to know Brister's views on separation of church and state, the influence of wealthy campaign contributors on the high court, and judicial activism.

"Do you believe in separation of church and state?" Hinojosa asked Brister.

"It depends on the circumstances," replied the justice.

Brister said he never noticed attorneys or juries being influenced by his own display of the Ten Commandments. He also noted that a federal court agreed that his courtroom posting of the Ten Commandments in Houston did not violate the U.S. Constitution.

"Are you saying separation of church and state means ministers can't run for the state Senate?" Brister asked Hinojosa.

"I'm not playing word games with you," Hinojosa shot back. "Do you believe in the principle of separation of church and state?"

Brister said the "two institutions are separate to the extent required to be kept separate" by the U.S. Constitution.

Barrientos accused Brister of dodging questions to an extent Barrientos said he's not seen during his 20 years in the Texas Senate.

"Usually I like to have straight answers to questions, but, you know, legalese overwhelms me today," he said.

Brister replied "no" when asked by Hinojosa whether he believes in going outside courtroom evidence in making decisions.

He said he would base his court opinions on facts rather than "bias."

The questions apparently alluded to Brister's record while serving on the 14th Court of Appeals, said Dan Lambe, executive director of Texas Watch, which monitors the Texas Supreme Court as part of its statewide consumer advocacy.

In a case of a child severely hurt by an escalator, the majority at the appellate court upheld damages awarded. Brister filed the lone dissent, prompting stern words from fellow appeals Justice Richard H. Edelman.

Edelman said Brister's dissent raised "fundamental" issues, asking what could "suggest a greater lack of impartiality" than to decide a case based on a matter not raised by either the defense or plaintiff.

Lambe said his consumer group is most concerned about Brister's activist record, inclined to make law through the court.

"The concern we have is this appointment is doing nothing to bring balance or fairness to the Texas Supreme Court," he said, adding that the court "errs" on the side of large insurance companies and other monied special interests.