Law & the Courts

In re the Case of Edith Jones

It was laughable from the start, but the fact that it was taken seriously is troubling.

The ethics apparatus of the United States judiciary moves slowly. It seems also to move truly. It did both on February 19, when it cleared Judge Edith Jones of all the misconduct accusations lodged against her after she delivered a lecture titled “Federal Death Penalty Review” at the University of Pennsylvania. That lecture took place on February 20, 2013. In it Jones defended the death penalty, mainly by dismantling some leading arguments against it.

Three months later, 13 individuals and public-interest groups formally complained that, in her talk, Judge Jones violated several norms of judicial conduct, chiefly by manifesting “bias” against some minority groups. The plaintiffs’ roster indicates some of these groups. Among them were the NAACP and a couple of Latino organizations.

Judge Jones unequivocally denied the allegations. The Committee on Judicial Conduct agreed: It concluded that none of the charges was supported by even a “preponderance” of the proof, which is the lowest of evidentiary standards. This is tantamount to a total vindication of Judge Jones. If the process were a sporting event, we would call it a rout.

This is no doubt the correct result. And it might appear that there is an end to the matter. But not quite. Even though justice finally was done, Judge Jones’s case should trouble anyone who cares about an independent and impartial judiciary, and who cherishes free speech and fair play.

How so?

For one thing, Judge Jones’s vindication is incomplete. The Committee’s exoneration of her has not been reported nearly as widely as the original accusation was. Fairness to Jones — indeed, simple decency — requires that the New York Times (for example), which ran a front-page article featuring the accusations, report just as prominently that the complaint was dismissed. Yet the Times has said nothing.

There is no mystery about why the Times would breathlessly tell its readers that a conservative judge slandered Latinos and blacks in a public lecture, for that fits nicely within the liberal media’s master narrative, especially when the judge also tells her audience that she is a Christian. No mystery either why the Times would go mum when the truth emerges that she didn’t: It doesn’t fit the narrative.

This transparent media bias is contemptible, and it is scarcely limited to the Times. It is unjust because it leaves a stain on Judge Jones’s reputation intact for all too many readers. And it will no doubt chill the speech of other judges who would challenge the canons of political correctness.

So too will the mere fact of being accused. Few judges are as courageous as Edith Jones. Many will draw this obvious lesson from her travails: It’s best not to say anything contrary to the master narrative, lest one face the expense and effort of defending oneself for a couple of years, all that time depicted by the media as a bigot. And so a valuable perspective on current issues in and near the law will be muted.

Make no mistake about it: This is a one-way street. Liberal judges parade their biases proudly. They are hailed as champions of freedom by the masters of the narrative when they do. Almost any recent story about Justice Ruth Bader Ginsburg and the pending same-sex-“marriage” cases would be Exhibit A in this dossier. A platoon of federal judges have, moreover, followed Justice Kennedy’s lead, striking down marriage laws by asserting that those who support traditional marriage hold a hateful prejudice, one that betrays a simple desire to “harm,” “stigmatize,” and “demean” some of their fellow citizens.

You can be certain that any such calumny uttered by, say, Edith Jones, about the motives and character of those favoring same-sex “marriage” would land her back in the dock of ethics court before she finished her lecture.

Jones’s case should never have been brought. That is usually clear in hindsight when a case is dismissed for lack of evidence. But this case is particularly troubling. The “proof” in support of the original complaint consisted mainly of six statements from persons who attended Judge Jones’s lecture. The lead affidavit was submitted by an anti-death-penalty lawyer named Marc Bookman. He admitted, however, that he had adapted notes made by another lawyer who was present, but who declined to join the accusing team. (A question never explicitly raised by the ethics court: Was Bookman biased against Judge Jones?) “His” statement then served as the template for those of five students. The ethics panel concluded: “The students met with a Philadelphia attorney, who gave the students the Bookman affidavit, discussed the affidavit and the lecture with them, and thereafter prepared draft affidavits for them.”

There is nothing necessarily unethical or illegal in this way of proceeding. It is nonetheless an improper way of gathering evidence, at least if getting at the truth of the matter is the objective. This sort of groupthink evidence-gathering would, in any event, wound if not destroy the credibility of all these witnesses in any trial court I have ever encountered.

Another part of the complaint against Judge Jones is simply toxic. The plaintiffs said that Judge Jones’s “hostile rhetoric” “severely undermines ‘public confidence’ in the federal judiciary.” They cited here Jones’s “tone and demeanor.” We have already seen that the complainants (to put it charitably) did not listen very attentively to what Jones actually said. Now they complain about how she said it. This is a recipe for catnip for the forces of political correctness, and for muzzling judges who do not toe the party line.

— Gerard V. Bradley is a professor of law at the University of Notre Dame.

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