In Defense of Judge Edith Jones

by Andrew Kloster

Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit has, throughout her tenure, been a principled and faithful judge. In fact, she was a potential Supreme Court nominee during the presidency of the first President Bush. Yet, as Gerard Bradley noted last week, this heavyweight judge now finds herself the subject of a frivolous judicial ethics complaint filed by a number of activist groups, including one apparently funded entirely by the Mexican government.

The complaint seeks to censure Judge Jones, cast doubt on her future and past opinions, and possibly even press for her recusal in death-penalty cases. In an effort to shut Judge Jones up, the complaint risks (or perhaps envisions) destabilizing our justice system and radicalizing faithful adherence to the law.

Just what is Judge Jones accused of doing? At a lecture on the death penalty at the University of Pennsylvania School of Law, Judge Jones allegedly expressed skepticism about a variety of criticisms of the death penalty. And although unsubstantiated, since the lecture was not recorded, there are also some allegations that Judge Jones made other comments about statistical differences in criminal behavior among populations.

All too often, calls for censure or recusal are politically motivated. Just yesterday, a special-interest group called on Justice Scalia to recuse himself from a pending voting-rights case, in part based on questions of his at oral argument. Asking for recusal based upon relevant questions asked by a judge in his own proceedings is patently absurd as a legal argument. It is simply political theater.

Yet publicly denouncing a judge is a win-win for activists: If you win the case, you have made your victory appear more remarkable; if you lose, you have made your loss appear nefarious.

Federal judges are bound by statute and internal rules to maintain the highest standards of professional conduct, including avoiding “impropriety and the appearance of impropriety.” Thus federal judges studiously avoid commenting on the specifics of cases before them, or specific cases that might come before them. Further, judges generally recuse themselves from cases where their impartiality might fairly be called into question, based not upon vague ideological or interpretive allegiances but upon hard, factual connection to the case at hand. 

To be sure, judges have not always lived up to these high standards. Chief Justice Marshall authored the opinion in the landmark 1803 case of Marbury v. Madison, a case which dealt in part with the actions of the secretary of state under John Adams. Who was this secretary of state? Justice Marshall himself. More recently, former judges Mark Ciavarella and Michael Conahan of the Luzerne (Pa.) County Court of Common Pleas were convicted in a “Kids for cash” scandal for sentencing juvenile offenders to long sentences without disclosing that they were receiving money from the owners of the facilities where the offenders were sent. That behavior was both illegal and immoral.

Whatever the ethical standard limiting judicial public comment, though, Judge Jones clearly never came close to violating it. There is no transcript of the proceedings, so the complainer’s characterization of her remarks might be false. But even if taken as characterized, the remarks are not at all germane to Judge Jones’ commitment to the laws of the United States. Criticizing the Supreme Court’s jurisprudence does not imply that Judge Jones has any difficulty remaining true to her status as an intermediate court judge.

Rather, the language of the complaint against Judge Jones reiterates the well-worn passive-aggressive heckler’s veto: 

“The whole discussion seemed disrespectful to me.”
“Judge Jones was unapologetic.” 
“I was made uncomfortable by her comments.”

The hypersensitivity, real or feigned, of audience members does not a scandal make.

Two weeks ago, Supreme Court Justice Sonia Sotomayor presided over a reenactment of the 1972 baseball antitrust exemption case, Flood v. Kuhn. She opined that she would have dissented in that case, which remains good law. By all accounts, Justice Sotomayor was engaging and witty throughout the event — yet she opined on a potentially live area of the law. No one could seriously suggest that Justice Sotomayor’s comments prejudice her against organized baseball, or threaten the rule of law. How is this any different from Judge Jones’s case? It isn’t — except that the politics in Judge Jones’s case are toxic, and domestic partisans and a foreign government are apparently willing to bankroll an effort to create a faux scandal.

As long as judges remain engaged in legal education, they will opine on areas of the law that might come before them in court. This is valuable to law students and the general public.

Not valuable are axe-grinding audience members intent on jotting down phrases and feelings to help activist groups file frivolous complaints against judges kind enough to perform this educational service. Such attempts to politicize legal education will simply stifle public legal debate and harm the institutional prestige of places such as the University of Pennsylvania School of Law.

— Andrew Kloster is a legal fellow in the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies.

Editor’s Note: This post has been amended since its initial posting.