Giants do walk the earth. There are heroes among us. And, on January 26, 2020, Judge Nathaniel R. Jones, a legal giant and a hero to many died at the age of 93 after eight decades of fighting for civil rights, of fighting for justice.

Judge Jones was a direct legal descendent of Walter White, William Hastie, Thurgood Marshall, and Robert Carter. As a recipient of the highest awards given by the National Underground Railroad Freedom Center, the Freedom Conductor Award, and by the NAACP, the Spingarn Medal, his name is forever linked with artists such as Marion Anderson, Duke Ellington, and Richard Wright; with historical figures such as Rosa Parks, Dorothy Height, John Lewis, and John Hope Franklin; and with friends such as Leon Higginbotham and Quincy Jones. His life and service have also been recognized by world leaders including Nelson Mandela, Bill Clinton, and Barack Obama. Impressive company, indeed.

As a lawyer, he served in private practice, as Assistant U.S. Attorney, as General Counsel of the NAACP, as a Supreme Court litigator, and, after 23 years on the United States Court of Appeals for the Sixth Circuit he was a valued Biglaw partner for two decades. His resume as a lawyer is incomparable. However, being the giant that he was even a field as capacious as law was insufficient to contain his talents and his interests. Does any reader know, for example, that he harbored a desire to captain an Ohio River coal barge? His daughter Stephanie made that happen.

Judge Jones’ life story from his Youngstown youth to the well of the United States Supreme Court and from his membership on the Kerner Commission to serving as an election observer in South Africa is told with great grace in his 2016 memoir Answering the Call: An Autobiography of Modern Struggle to End Racial Discrimination in America. Judge Jones heard the call to fight for justice when he was a 10-year-old and he never wavered, he never ignored racial injustice, he never stopped fighting against it. He was answering the call right up to his last speech on civil rights at the dedication of the Nathaniel R Jones Center on Race, Gender and Social Justice at the University of Cincinnati College of Law on November 14, 2019.

Answering the Call is required reading for anyone who wants to know about the many lives of Judge Nathaniel R. Jones; it is also required reading for anyone who wants to understand the history of civil rights over the last 80 years.

One of the lesser-known aspects of Judge Jones' career is that he was a superb teacher and scholar. His scholarship can be found in law review articles and is manifest in his many public speeches. He was a remarkable teacher in many venues. For over 30 years he served as an adjunct professor at the University of Cincinnati College of Law. He also taught at Harvard, Yale, Stanford, any number of other United States law schools, and in Cincinnati public schools. Even though he was a formidable classroom teacher, his teaching role transcended the classroom and affected every phase of his life. Just ask any of the dozens of law clerks that he has shepherded throughout his 23 years on the bench. Those clerks have become leaders in private practice, law professors, cabinets secretaries, and outstanding public servants.

Still, his teaching reached beyond his chambers and beyond the court room. He was unstinting in his community service. As a member of corporate and nonprofit boards his teaching continued. Indeed, as a board member he might best be characterized as a CCO – chief conscience officer. His participation in board meetings was always germane and on matters of justice and civil rights indispensable.

What qualities, gave Nathaniel R. Jones such stature as a civil rights voice and leader and as a citizen committed to justice?

Judge Jones possessed an abundance of the virtues needed to live an outstanding life; to live the life of a hero. He possessed wisdom; he possessed a piercing intellect. Judge Jones was a principal actor in many of the key civil rights activities over the last half-century and more. He knew everyone. He knew his history, his politics, his society, and his community. He remembered everything. And, he was able to bring all of that intellect and knowledge and all of those experiences together to confront racial discrimination in the United States and in other parts of the world.

He possessed the courage to keep his eyes open and speak his mind when confronted with injustice and he had an extraordinary capacity to focus. He never wavered in his commitment to civil rights; he never lost sight of the need for constant awareness of civil rights violations and the need to recognize them where they existed. No forum was inappropriate for him to acknowledge racial bigotry and discrimination. No audience could prevent him from talking about his passion.

He also possessed moderation. Politics of any kind can be intense and contentious. Racial politics can draw bloodshed and has been fatal. In the face of such contention his voice was always steady and clear; forceful and persuasive; and never shrill, never false, never expedient. He spoke his mind in the world with dignity, diplomacy, and deep humanity.

In Judge Nathaniel R. Jones, the virtues of wisdom, courage, and moderation that he possessed in such abundance contributed to and advanced the cause of justice for all of us.

 

 

This column originally appeared in The Concord Monitor.

Our constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our “separation of powers” and the latter as our “federalism.”

The framers designed the Constitution in this way because they believed that politicians, like people generally, tend to be self-interested and lacking in virtue. They thought that the structural checks and balances imbedded in the system would prevent “factions” (think “interest groups”) from seizing power and imposing their will on the rest of us.

They also thought that the constant striving by politicians to press the advantage of their own governmental branches (which they called “departments”) would force compromise, maintain balance and dilute factional power.

The framers’ expectations regarding the virtue of politicians have been amply confirmed over time. But their expectation that politicians usually would seek to advance the interests of their own governmental departments, which is a central premise of separation-of-powers theory, has not.

Partisanship, a type of factionalism whose form and nature the framers did not fully anticipate, has time and again trumped (if you will pardon the pun) departmental loyalty.

Consider how the impeachment of President Trump is playing out. Put to the side for a moment the allegations regarding the president’s solicitation of foreign interference in our 2020 presidential election, which are set forth in the first article of impeachment charging an abuse of power.

Focus instead on the second article of impeachment. That article charges the president with unlawfully obstructing Congress by directing executive branch offices, agencies and officials not to comply with subpoenas issued by the House of Representatives in furtherance of the “sole Power of Impeachment” conferred upon it by article I, section 2 of the Constitution.

Congress’s power to impeach and remove a corrupt president, and its more general authority to conduct oversight of executive branch officials tasked with carrying out legislative directives, are among the most important tools for preserving its constitutional power and checking the executive branch.

Therefore, if the framers were correct in assuming that politicians’ primary allegiance would run to their governmental departments, one would expect widespread congressional support for, if not the second article of impeachment itself, then at least its animating principle: that the president should provide reasonable cooperation with Congress when it exercises a constitutionally authorized power.

But this has not occurred. Not one member of the president’s political party in the House of Representatives voted for the second article of impeachment or voiced support for the principle it seeks to vindicate.

Moreover, Senate Majority Leader Mitch McConnell has made it clear that partisanship, rather than upholding congressional authority or discharging constitutional responsibility, will inform his approach when the Senate exercises the “sole Power to try all Impeachments” conferred upon it by article 1, section 3 of the Constitution.

Sen. McConnell has expressed an unwillingness to call witnesses at the Senate impeachment trial and an eagerness to deliver a quick acquittal.

He also stated: “Everything I do during this [impeachment trial], I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”

And he later added: “I’m not an impartial juror. This is a political process. There’s not anything judicial about it. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”

Compare the approach Sen. McConnell contemplates with the substance of the oath he will swear when the Senate trial of President Trump commences: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment . . . now pending, I will do impartial justice according to the Constitution and laws: so help me God.” (Article 1, section 3 expressly requires that senators “be on Oath or Affirmation” while trying articles of impeachment.)

You are not alone if you perceive an inconsistency.

So, what is to be done when our political leaders exceed constitutional limits or fail to discharge constitutional obligations, and partisanship prevents the proper functioning of constitutional processes to hold them accountable?

The obvious answer is nothing unless and until “We the People” communicate in overwhelming numbers that we value constitutional fidelity more than partisan victories. The primary (but by no means exclusive) way we can send this message is with our votes this fall.

But does a sufficient percentage of us actually prefer principled constitutional governance to the raw exercise of partisan power?

The upcoming election will be a referendum on this question. I am convinced, however, that an overwhelming majority of us would hold this preference if we were able to cut through partisan propaganda and soberly evaluate the downsides of governance by the victors in all-out partisan war.

So, how can we overcome the partisan propaganda?

This is an enormous problem. But a renewed national commitment to robust civics education would be a good place to start.

In his 2019 Year-End Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts argued powerfully for just such a recommitment. “We have come to take democracy for granted, and civic education has fallen by the wayside,” Roberts wrote. “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”

He also opined: “Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people but the tools to understand and improve it.”

Hear, hear. “We the People” need to understand that, notwithstanding its many undeniable flaws, governance through our constitutional order is far preferable to governance by crude tribal partisanship. And a commitment to civics education is necessary to such an understanding.