A Texas civil rights organization has submitted a judicial misconduct complaint against U.S District Court Judge Lynn Hughes of Houston to the 5th U.S. Circuit Court of Appeals, alleging that Hughes has made "racially intolerant comments" and requesting that he step down from the bench or be disciplined.

"Some things you have to do because they are so outrageous," says James C. Harrington, director of the Texas Civil Rights Project, who wrote the judicial conduct complaint against Hughes.

Hughes did not return a call for comment.

The Texas Civil Rights Project lodged the complaint, which Harrington says he sent to the 5th Circuit on Feb. 5. The complaint discusses three court cases — in which the group was not involved — as examples of Hughes’ comments.

The complaint cites Jitendra Shah v. Texas Department of Criminal Justice, in which the plaintiff, who was born in India and is Hindu, sued for alleged employment discrimination. In a November hearing in the case, the complaint alleges, Hughes questioned the role of diversity directors, stating in a hearing on the record, "Why don’t they just hire people on ability and let diversity take care of itself? And what does the diversity director do? Go around and painting students different colors so that they would think they were mixed?"

The complaint also alleges that in Kafi v. Bakers Footwear Group (2010),Hughes made "racially offensive remarks regarding two Vietnamese lawyers, suggesting that . . . they should move to North Korea to practice labor law."

The complaint also cites a Jan. 5 decision in Albert J. Autry v. Fort Bend Independent School District, in which a 5th Circuit panel noted that Hughes was incorrect in deeming "political" an alleged hearsay statement involving President Barack Obama and fried chicken that the plaintiff attempted to offer at trial. The opinion quotes Hughes as "observing that ‘no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else."

"The district judge’s comment misses the mark, as it overlooks the racial component of" the alleged statement, wrote Senior Judge Patrick Higginbotham in an opinion joined by Judges Priscilla Owen and Leslie Southwick in Autry.

Next Steps

Joe St. Amant, senior appellate conference attorney for the 5th Circuit, says he can neither confirm nor deny that the 5th Circuit has received the complaint. He notes that federal judicial disciplinary matters are complaints are generally not made public early in the process under the 5th Circuit’s Rules for Judicial Conduct.

Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial discipline, says the substance of the complaint against Hughes "implicates a clash between two of the most fundamental postulates of the disciplinary system." That’s because the federal judiciary disciplinary rules seeks to protect the independent decision-making of trial court judges while balancing concerns that those judges are not prejudiced on the basis of race, ethnicity or sex, Hellman says.

Hellman notes that under the the Rules for Judicial Conduct and Judicial Disability Proceedings, which the Judicial Conference of the United States adopted in 2008, a cognizable misconduct complaint does not include "an allegation that is directly related to the merits of a decision or procedural ruling."

However, the comments section of those 2008 rules describing what constitutes a "merits-related" decision of a judge states: "An allegation that a judge ruled against the complainant because the complainant is a member of a particular racial or ethnic group, or because the judge dislikes the complainant personally, is also not merits-related."

"It’s at the very heart of this clash between values. On the one hand, you want an independent judiciary, but you also want an unbiased judiciary," Hellman says.

Ultimately, the decision over whether the complaint against Hughes constitutes a cognizable misconduct claim will be up to the 5th Circuit’s Chief Judge Carl Stewart, Hellman says.

"The chief judge is the gatekeeper" Hellman explains, noting that Stewart will have to decide whether the complaint against Hughes "falls within the act and warrants further investigation."