At a time when judges at all levels are radically reinterpreting existing law, citizens are increasingly wary of any judicial candidate who may disregard the will of the people. In his bid for a seat on the Texas Court of Criminal Appeals, one candidate is making clear that he stands against legislating from the bench.

“It’s not the judge’s job to be a judicial activist,” said Wheless at a Lubbock event last week. “Judges shouldn’t legislate from the bench and they shouldn’t impose their own views on cases, and so if the jury decides in a criminal case that someone should go to prison, a judge shouldn’t interfere with that. I think the judges need to follow what the law is. They need to follow and respect jury decisions and I will do that if I’m elected to this court.”

The remarks are certainly welcome words for conservatives given the high stakes cases that have been adjudicated in the state’s highest criminal court. The Court heard both the Rick Perry and Tom DeLay indictments and ultimately vindicated both men. With a bogus prosecution of Texas Attorney General Ken Paxton ongoing, that case may end up in front of the Court as well.

In his bid for the Court, Wheless is facing off against Mary Lou Keel, a district judge from Harris County. Conservatives are rallying behind Wheless, a proven conservative with support from the grassroots. Meanwhile, Keel had no real record of involvement in the party prior to joining the Village Republican Women in late 2015.

However, what worries some grassroots conservatives most is not Keel’s lack of involvement in party politics, but her apparently involvement in politics from the bench.

In 1998, former State Sen. Don Henderson was found guilty of three charges of intoxicated assault after injuring three individuals in a drunk driving car accident. Henderson was sentenced to pay $30,000 in fines and serve four years in prison. He appealed twice, first to the Court of Appeals and upon failure there, to the Court of Criminal Appeals, where he lost again. Three years after the initial incident, Henderson was ultimately sent to prison to serve his four year sentence, but after only five months in jail, Keel ordered him released on “shock probation” and dismissed two of the $10,000 fines.

According to the Texas Bipartisan Justice Committee, shock probation is normally reserved for offenses for which a defendant “admits guilt, accepts responsibility and exhibits remorse.” Because Henderson initiated a three year legal battle rather than seek accountability for his crimes, the organization argues that he should not have been released.

“We cannot recommend a vote for Judge Keel,” said the organization.

The current climate in Texas is one in which one branch of government, the Texas Legislature, already seeks to enhance special privileges for legislators while also restricting the rights of citizens (as demonstrated by the House hijacking of Gov. Abbott’s ethics legislation last session).

At such a time, conservatives cannot afford to surrender the judiciary to those who would apply the law differently depending on the individual. Instead, conservatives must be even more cautious in choosing the individuals entrusted to uphold the law.

Cary Cheshire

Cary Cheshire is the Vice President of Texans for Fiscal Responsibility. A 6th Generation Texan, Cary attended Texas A&M University was active in a number of conservative causes including Ted Cruz's Senate campaign. He has also worked on campaigns to elect conservatives to Congress and the Texas Legislature. Cary enjoys college football, genealogy research, and the occasional craft beer.

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