Yesterday’s New York Times ran a disturbing story about a speech that Fifth Circuit Judge Edith Jones gave to the Penn Law School Federalist Society in February. Times writer Ethan Bronner reports that a “group of civil rights organizations and legal ethicists” just filed a misconduct complaint against Jones. Bronner goes on to describe all the disturbing things that the complainants say that she said.
The story is indeed disturbing. What’s troubling about it is not, however, what Judge Jones said. What’s troubling is that she is being charged with misconduct for what she said. It is even more disturbing that the complainants are in the “civil rights” and “ethics” business.
The gravamen of the complaint is two-fold. As Bronner relates the accusation, Jones’s remarks evinced a “bias against minority groups and an inappropriate religious belief in the death penalty.”
What are the bases for these grave charges? I should say straightaway that I have no idea what Judge Jones actually said in February, other than what the Times reports her as saying. According to the Times, what she said was not recorded, and there is no transcript of it. The recent complaint relies upon the recollections of some folks who attended the speech.
They say that Jones said something like “Death penalties serve the condemned by forcing them to face God.” Well, of course they do — if there is indeed a God. I believe there is, and until I read this story, I thought Judge Jones had a “civil right” to believe there is, too. Most religions maintain that after death there is some sort of divine judgment. Surely Christianity maintains that it is so.
Of course, Judge Jones (depending on what exactly she actually said) might have been drawing attention to one traditionally prominent, and still somewhat common, putative virtue of the death penalty, namely, that anyone facing certain death — be it those on death row or on the walls of the Alamo — might contemplate divine judgment. This was thought, and is still sometimes thought, to be a spiritual comfort. No doubt it can be for people sentenced to death. Some of them are religious believers, and some of their last thoughts must be about God.
Stephen Gillers, a leading legal ethicist at NYU, is nonetheless troubled — by Jones, not by the complaint against her. “If a judge were to say that [referring to the “face God” comment] during sentencing, that sentence would be vacated,” he said. Maybe so. But if my aunt were a man, (s)he would be my uncle. The point is that no one alleges that Edith Jones has ever said anything like that in a sentencing. In fact, she does not sentence people. She is an appellate judge, whose job includes the occasional review of another judge’s capital sentence, to see if that judge acted lawfully. Sharing her moral or religious beliefs about capital punishment — whatever they happen to be — in a lecture room has no necessary tendency to show that Edith Jones has acted, or would act, in any appellate case except according to the law.
Gillers is steamed by the fact that Jones believes these things. He supposes that Jones might believe that sentencing a person to die might “help” that person — and “that is totally inappropriate.” Gillers does not say that this belief is false. So, by “inappropriate,” he apparently means that anyone holding such a belief is (I guess) unfit to sit as a judge in a capital case.
Gillers is wrong. We fully expect our judges to possess moral and religious beliefs that frequently diverge, and sometimes conflict, with the law. But we expect them to abide by the law, notwithstanding their personal beliefs. We do not expect them to be moral or religious eunuchs.
When I was an assistant district attorney in Manhattan, I appeared at a couple thousand or so sentencing hearings (though never one involving the death penalty). Perhaps a hundred times, I saw judges impose sentences, with which they morally disagreed, according to the law. Often they remarked upon that fact. It never occurred to me to file ethics charges against any one of them.
Besides, Gillers makes a simple mistake of logic that vitiates his whole position. He confuses side-effect with intention, which is no small error for a law professor to make. One might well say that anyone banished to a desert isle will have a lot of time to think. One might well say that those who manned the Alamo’s walls had the opportunity to be heroes. Edith Jones might well have said that some people on death row repent. But none of these three speakers is necessarily saying that being banished or dying at the Alamo or dying in San Quentin is good, or desirable, or is something that the speaker favors or would wish to see happen.
I observe that, if Jones were removed from office because of this disturbing complaint, she could spend more time with her husband. That would in itself be good. I nonetheless oppose removing Jones from office, because I think that the complaint is groundless.
What did Judge Jones say that revealed “bias against minority groups”? The complaint alleges that she asserted that certain “racial groups like African-Americans and Hispanics are predisposed to crime.” Here is where the Bronner story is most disturbing of all, for no one (according to the Times piece) says that he or she actually heard Judge Jones say that.
What did they hear (or think they heard)? One auditor’s affidavit attributes to Jones the following lament: “Sadly, some groups seem to commit more heinous crimes than others.” Well, yes, of course — as a stroll through any prison or a glance at any statistical report on violent crime would unequivocally confirm. But that has nothing to do with any “predisposition.” It is only a fact about who commits crimes. It is an undeniable fact that happens to be compatible with a benign view of those racial groups’ “predispositions.” After all, it might be that crime rates among (for example) young African-American men has to do with the lack of economic opportunity where they live — and not with any nefarious “predisposition.”
Judge Jones is also alleged to have observed that, “often,” defenses involving “mental retardation” and “systemic racism” in capital cases are “red herrings.” No doubt they are. A systematic survey of the reported cases would show that judges have heard far more such defenses than they have credited — and none of these judges is named Edith Jones!
Charles Wolfram — a leading ethicist retired now from Cornell — is nonetheless greatly concerned. “If I were a parent of a black with a borderline IQ accused in a capital case,” Wolfram opined, “would I be distressed in knowing that Judge Jones was sitting on my case? Yes, I would.” Since Wolfram’s vicarious “distress” means nothing — it too is a red herring — his money line comes next: Jones “is slanted.” She “seems to have made up her mind on these issues.”
What’s distressing here is not anything Jones is reported to have said. What’s really troubling is that Wolfram — who was not present for Jones’s lecture — could level such a serious charge against a distinguished judge on such hearsay evidence. It is distressing too that Wolfram leveled the charge on such inconclusive hearsay evidence. For Jones — or for any judge — to report that, based upon long experience, certain common claims or defenses or legal strategies or appellate arguments regularly deliver much less than promised is commonplace. By itself it indicates no lack of impartiality. Or, if you prefer to count such a report as tell-tale of a closed-mind, then judicial “impartiality” is your ultimate fantasy.
The complaint is now in the hands of Fifth Circuit Chief Judge Carl Stewart. He has the power to dismiss it, and Bronner reports that is what happens to “most” complaints against judges. I hope that the Times runs a comparable piece when Stewart does exactly that. But I fear that it will not.