Fifth Circuit Judge’s Outlandish Comments Spur Questions of Impartiality

June 5, 2013

by Jeremy Leaming

The federal appeals court judge under an ethics investigation for allegedly making racist comments at a Federalist Society event has been building a rather tawdry track record on and off the bench. The ethics complaint lodged by civil rights groups against Judge Edith H. Jones of the U.S. Court of Appeals for Fifth Circuit has become somewhat high-profile thanks to coverage from The New York Times.

But Nicole Flatow and Ian Millhiser of ThinkProgress add to the story. First Flatow notes that Jones, appointed to the bench by President Ronald Reagan, “is known for her hostile and discriminatory comments.” Flatow continues that Jones “erupted at one of her fellow judges during oral argument in 2011, and told him to ‘shut up’ while asking him to leave the courtroom.” Flatow also notes Jones (pictured) wrote an opinion arguing for dismissal of a woman’s sexual harassment lawsuit. It was not enough that the woman’s male co-workers repeatedly groped and grabbed her and plied her locker with pornographic pictures. The woman’s supervisor dismissed her complaints and Judge Jones argued for the same thing to be done. Fortunately her opinion was in dissent. Nonetheless that dissent suggests Jones harbors an incredibly callous or cynical view of sexual harassment charges.

Millhiser in a separate post expounds on Jones’ ethically suspect behavior and wobbly jurisprudence. Millhiser writes that Jones “joined an opinion holding that a capital defendant could be executed despite the fact that his lawyer slept through much of his trial. Though that opinion was eventually reversed by the full Fifth Circuit, Jones dissented from that reversal.”

The Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens and Mexican Capital Legal Assistance Program lodged the ethics complaint against Jones arguing that her comments at a Federalist Society event at the University of Pennsylvania School of Law violated the Judicial Conduct & Disability Act. That code of conduct, in part, requires judges to remain impartial.

The event was not recorded, according to the law school, but the complaint includes affidavits from members of the gathering. The Times’ Ethan Bronner reports that the groups’ complaint says Jones declared, “racial groups like African-Americans and Hispanics are predisposed to crime.”

When prodded on that comment by a lawyer in the audience, Jones allegedly added that blacks and Latinos “get involved in more violent crime.”

Jones, the complaint alleges, expressed incredibly base comments about death penalty defenses. Most of them, such as claims of racism, are “red herrings,” The Times reports. According to the newspaper witnesses added that the judge maintained “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”

Additionally the ethics complaint alleges that Jones told the gathering that the death sentence provides inmates opportunities to reconcile with God. Stephen Gillers a legal ethicist at New York University School of Law told the newspaper that if a judge “were to say that during sentencing, that sentence would be vacated.”

The Judicial Code of Conduct & Disability Act includes examples of misconduct, such as “discriminating against litigants or attorneys on account of race, ethnicity, sex, or other legally protected attribute.”

The ethics complaint is before the 5th Circuit’s first African-American Chief Judge Carl E. Stewart.

In May, Chief U.S. District Judge Richard Cebull in Montana retired following the conclusion of a misconduct investigation over a racist e-mail he forwarded about President Obama.  

The civil rights groups’ complaint against Jones raises serious questions about the ability of a judge on a more powerful federal court to impartially dispense justice.