September 29, 2005
Who is Edith Jones?
Just prior to President Bush's announcement of the nomination of Judge John Roberts to fill the vacancy then left by Justice O'Connor, the name at the top of the rumor mill was Judge Edith Jones, of the 5th Circuit Court of Appeals. With the passing of Chief Justice Rehnquist and Judge Roberts nomination to become the next Chief Justice, Judge Jones's name is again at the top of the list.
President Reagan nominated Judge Edith Jones (photo via The Daily Texan), who was born in 1949 and graduated from the University of Texas law school in 1974, to the Fifth Circuit in 1985. Prior to serving on the 5th Circuit Judge Jones was a lawyer in private practice at the Houston Law Firm of Andrews & Kurth. Jones, while out on maternity leave, became the first woman partner at Andrews & Kurth.
Jones told the Houston Lawyer that her judicial philosophy is, "less is more." "The federal judiciary has an important but ultimately limited role in society," she said. "I favor legislative authority over judicial authority. We have an obligation to make law as clear as possible. It is law to guide all of the people."
In at 2003 speech before the Virginia Law School chapter of the Federalist Society, Jones claimed that, since the 1960's, the Supreme Court has been issuing decisions that impose "modish, untested philosophical notions and extreme libertarianism that would have left the [Constitution's] Framers aghast." She added that the Warren Court, "extravagantly assumed the power to dictate new 'rights' not expressly stated in the Constitution and in so doing foisted its philosophical vision on the United States with consequences far beyond the Court's imagining." She called into question decisions that currently protect the right to privacy, free speech, student's rights and the rights of the accused.
At another 2003 Federalist Society event, hosted by the Harvard student chapter, Jones remarked,
The integrity of law, its religious roots, its transcendent quality are disappearing. The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature, dictated by God himself, is binding, in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation..."This is not a prescription for intolerance or narrow sectarianism, for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.
Judge Jones on Choice: In McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S. Ct. 1387 (2005), Judge Jones the wrote majority opinion rejecting Norma McCorvey's request to reopen Roe v. Wade--McCorvey was Roe in that landmark case. In a special concurring opinion, however, Judge Jones wrote, "if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew." Judge Jones also expressed her view that "that the Court will someday acknowledge" the research done post-Roe on women's mental and physical health following abortion "and re-evaluate Roe and Casey accordingly." Judge Jones concluded by arguing "[t]hat the Court's constitutional decision making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."
Jones authored the majority opinion in Barnes v. Mississippi, 992 F.2d 1335 (5th Cir. 1993), cert. denied, 510 U.S. 976 (1993), that held a two parent consent requirement, with a judicial bypass provision, for minors prior to obtaining an abortion is not an undue burden on the minor, and therefore constitutional.
Judge Jones on Sexual Harassment:In Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989), a female employee was repeatedly propositioned, was groped and grabbed, pornography was placed in her locker, and other employees broadcasted obscene comments about her over the company's public address system. During the oral argument, Judge Jones remarked, "they didn't rape her, did they?", and when the woman's lawyer replied that the woman had complained that "one of the guys pinched her breast," Jones replied "Well, he apologized." While the majority found that the woman should be permitted to proceed with a sexual harassment claim, Judge Jones dissented.
In Doe v. Taylor Indep. School. Dist., 15 F.3d 443 (5th Cir.), cert. denied, 513 U.S. 815 (1994), Judge Jones broke with the majority that determined that a 15 year old student who had been repeatedly molested by her high school teacher for over a year should have be permitted to sue school officials, who had been repeatedly told about the teacher's actions. Jones argued in her dissent, that whether a student had the constitutional right to be free from this type of sexual harassment was "still vague" because "no broad constitutional purpose to be served by recognizing for [a victim's] benefit a constitutional right not to have her bodily integrity compromised by a teacher's sexual abuse."
Judge Jones on the Endangered Species Act:Jones argued in a dissenting opinion in GDF Realty Investments, Ltd. v. Norton, 362 F.3d 286 (5th Cir. 2004), that a rare species of underground bug is not protected by the Endangered Species Act since the preservation of this endangered species was not connected with "any sort of commerce, whether tourism, scientific research, or agricultural markets."
Judge Jones on the Death Penalty:Judge Jones joined a majority a opinion which denied a capital defendant a trial despite the fact that his attorney slept through most of the proceedings, Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000), rev'd en banc, 262 F.3d 336 (5th Cir. 2001). On en banc review, the capital defendant was granted a new trial. The Texas Observer reported that Jones "is a death penalty champion who unabashedly favors curtailment of post-conviction review."