Elections, Judicial Conduct Commission, provide too little accountability for judges

In the Dallas News, Diane Jennings has an article on the state Commission on Judicial Conduct ("State Commission on Judicial Conduct has the job of judging Texas judges," Dec. 14) which normally receives little attention but was cast into the state spotlight this year when it initiated a fact-finding hearing to decide whether Court of Criminal Appeals Presiding Judge Sharon Keller should be removed. Jennings provides an overview of the agency's more mundane, everyday work, providing these macro-level data:

In fiscal year 2009, 1,204 cases were filed. Most are dismissed, but 70 disciplinary actions were issued, with judges receiving punishments ranging from private sanctions to public reprimands. ...

According to the commission's annual report, most of those disciplined by the commission are low-level jurists: 41 percent were justices of the peace in fiscal year 2009.

That doesn't necessarily mean the commission is reluctant to sanction higher-level judges, said Cynthia Gray, director of the Center for Judicial Ethics of the American Judicature Society. "There are more lower-level judges in every state, so statistically you would expect there to be more complaints about them and more action taken," she said.

The story also points to the perils of electing judges, since in general voters pay no attention to down-ballot judicial races and it's often terribly hard to oust an incumbent from office, even when they have a rotten record:

Because Texas is among a handful of states that elects judges, the ultimate overseers are voters, Willing said. And that can be frustrating, she said. Some judges, such as Dallas Justice of the Peace Thomas Jones, for instance, have been sanctioned several times by the commission but keep getting returned to the bench.

"There are different judges in the state who I think would be elected even if they were standing accused of murder," Willing said. "They're just so popular with the voters."

Having worked on more than 20 judicial campaigns during a past life as an opposition researcher, I can confirm there's some truth to that. The old joke is that to defeat an incumbent judge, you have to catch him with "a dead girl or a live boy." But I personally believe there's a seldom discussed reason for the difficulty of unseating incumbent judges, and it has to do with the quality of campaign research.

Very few campaign workers understand the judiciary and its workings well enough to articulate a profound critique of a sitting judge, much less to perform a thorough vetting on a challenger. Instead, for criminal court judges, there's really only one, tired, lazy tactic used by most campaigns: Find some offender to whom they granted probation or other leniency who then committed a later offense and accuse them of being soft on crime. (For civil court judges, the lazy, typical critiques usually fall along the greedy lawyer/tort reform axis.) Most campaign people know so little about the law and the courts that they're incapable of engaging in political dialogue beyond those simplistic canards.

That ignorance among campaign staff leads to dumbed-down, ineffective messages and strategies. The soft-on-crime message may be the most common attack on criminal court judges, but that hardly means it's a tried-and-true one: Most incumbent judges win re-election handily, and when they don't it's usually because of a partisan flip like the ones witnessed recently in Dallas and Harris County; very rarely does a challenger's campaign muster a credible, unique attack message and the resources to deliver it. In judicial elections - especially smaller ones - the cookie-cutter approach predominates.

That said, I don't know if the difficulties ousting incumbents mean appointed judges would be any better. For example, Gov. George W. Bush appointed Judge Verla Sue Holland out of Collin County to the Texas Court of Criminal Appeals, but we recently learned she'd engaged in a long-time affair with her home-town District Attorney - which she concealed for years, even from her CCA colleagues - that tainted innumerable cases, including a capital murder trial. As President, Bush also appointed the egregious Priscilla Owen to the Fifth Circuit Court of Appeals. The defrocked Samuel Kent out of Galveston was appointed, for that matter. If these folks are examples of the merits of appointing jurists, I remain unconvinced.

For my part, I'd like the Commission on Judicial Conduct to make all reprimands public as well as their "letters of caution" which are currently secret - if they find a judge has done wrong or requires official cautioning, I see no reason for keeping that from the public under any circumstance. Voters need and deserve to have that information.

For good or ill, most judges' impression of the Commission on Judicial Conduct will likely be defined at least for the next few years by how they handle the Sharon Keller "We close at 5" debacle, which is their highest-profile case in a long while. If they find she did wrong but she gets a slap on the wrist, other judges won't fear the Commission's wrath the way they would if she receives a more serious reprimand.

RELATED: See the agency's latest annual report (pdf).

UPDATE: Lise Olsen at the Houston Chronicle today published a lengthy story titled "Judging the Judges." on the topic of secrecy in misconduct investigations involving federal judges. It's a nice complement to Jennings' Dallas News piece on misconduct investigations of state judges.