Stage Seven: How Fair are Texas Judges Being Judged?

In a recent Austin American Statesman article titled, “Texas judges' misdeeds often kept secret by oversight commission,” the writer has brought attention to the biased and secretive disciplinary action received by some Texas judges whose cases have been heard by the State Commission on Judicial Conduct (SCJC). This state agency was created by the Texas legislature to oversee approximately 3900 judges who are investigated for judicial misconduct and to take appropriate action to punish a judge’s alleged misconduct. Of the approximately 1200 complaints heard yearly by SCJC, arguments against the agency are that very few judges are disciplined, most of the reprimands are kept private, and punishment varies when similar cases are presented to the agency. With an unpaid staff of six judges, two attorneys, and five citizens, the State Commission on Judicial Conduct is a small agency managing a large caseload which acts as a quasi-court for judges’ misconduct. The agency strives to maintain the integrity of the judiciary and promote public confidence in the conduct of judges.

Justifying their duties, the State Commission on Judicial Conduct states many of the cases are dismissed because they have no merit, there is insufficient evidence, or they are unrelated to the agency's oversight. Additionally, other factors cited include a shortage of staff, working long hours investigating the caseloads, and having a limited travel budget to properly interview witnesses, which are problematic issues for thoroughly assessing an investigation and reaching an appropriate reprimand or punishment.

While the article states that most reprimands are kept private in accordance with the Texas Constitution to prohibit public retaliation, advocates say these are necessary protections to guard judges. However, there must be equal division between the public’s knowledge on which judges have received sanctions and a voter’s right to make an informed decision whether or not to elect that judge again. In my opinion, the Public Information Act, which makes all government information available to the public with certain exceptions, should be extended to include the State Commission on Judicial Conduct since it is a governmental body enacted by the Texas Legislature. Additionally, the Sunset Advisory Commission is mandated by the legislature to determine if SCJC is performing its intended function. After a recent audit of proposed recommendations to SCJC in March of this year, this agency will now allow Sunset Advisory Commission to sit in the judicial misconduct hearings to fully evaluate whether it is performing their duties impartially.

Due to the private rules held by the State Commission on Judicial Conduct, there have been numerous instances of unfairly sanctioning judges with similar offenses. The decision to reprimand or punish judges has been largely applied on a case-by-case basis which varies because the thirteen-member commission changes commissioners every six years and this may account for some of their inconsistent judgments. This agency seems to be loosely regulated and has unique protection by the Texas Constitution which created its existence, yet it is unable to be restrained by the legislature to be fully accountable in its decision-making process.

Stage Six: Comment on a Colleague's Work

In the article, titled “Let the Pandering Begin…” the author expresses her disapproval of the recent ruling by the U.S. Department of Justice which blocked Texas from requiring government-issued photo identification to vote because it would unfairly target Hispanics. When President Lyndon B. Johnson signed the Voting Rights Act of 1965, its purpose was to protect minorities from being disenfranchised, especially in southern states where state officials were particularly resistant to enforcing the 15^th Amendment which states that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Jurisdictions covered by the special provisions of the Voting Rights Act of 1965 could not implement any change affecting voting until the Attorney General or the U.S. District Court determined that the change did not have a discriminatory purpose and effect. I believe Texas Republicans have challenged this ruling and continue in their efforts to undermine the Hispanic population’s voting potential through this law to retain their majority rule in the House and Senate.

While the writer’s cited examples of opening a bank account or boarding a plane require photo identification are valid, there are several reasons that merit examination for another perspective on the opposing side of the topic. For example, students could be unfairly targeted from voting if they do not have a driver’s license and can only provide school-issued photo identification. Also, due to the large and ever-increasing Hispanic population in Texas, the voter identification requirement could certainly encumber this group of voters and other minorities from participating in elections. In many rural communities of Texas, people have to travel a farther distance to obtain a driver’s license and in these economic times, a government-issued identification may pose a financial hardship when it is not an otherwise justifiable necessity for some people in order to vote.

According to the Brennan Center for Justice at NYU School of Law’s study entitled the Truth About Fraud, there is little evidence to substantiate that voter fraud exists at a prevalent level to sway elections one way or another. In fact, only a minute amount of illegal voting can be authenticated and most of these allegations of fraud have been found to be conjecture or decisively invalidated. Some of these “mistakes” include clerical or typographical errors, incorrect registration records, dual registrations, or incorrectly being identified as voting twice for the same election, to name some instances. As mentioned in this study, voter fraud is usually an excuse by a losing candidate to claim a skewed election and in this case, another attempt by Texas legislators who want to add voter fraud in addition to redistricting Texas maps favorably for the Republican Party. It does not appear from this report that requiring photo identification can help control and keep corruption in check when there is no solid evidence to support a widespread problem with voter fraud.

There is nothing wrong with having a proper form of identification to vote. However, without investigating the reasoning to enforce such a law, it could negate the efforts by minorities to maintain their voting privileges which have been so hard fought throughout the history of our country. Moreover, in light of the low voter turnout in Texas with few exceptions, people who go to the voting polls have taken the time to exercise their right to vote and made a decision on their choice of candidates purposely. It seems unlikely that a large percentage of these people are making a concentrated effort to defraud the election process. In addition, federal voter fraud is punishable by five years in prison, a $10,000 fine and applicable state penalties which should deter someone from casting a single vote that probably will not make a difference in the election.

Finally, making a choice to go on a trip which requires a passport is a decision the writer has made for a planned event to enter another country and not a freedom entitled as a United States citizen. The fee, gasoline and waiting period to receive the passport are responsibilities to obtain the passport. It is not in the same category as the free right that eligible, registered voters would have with a required government-issued photo identification fee associated to cast a ballot and is essentially a modern day poll tax to disenfranchise legitimate voters.