Story │ Record │ Discussion
▶ This Case Study examines a serious (non-frivolous, and seemingly sincere) Complaint of Judicial Misconduct (with political/ideological overtones), which garnered national attention and a high-profile investigation, but which was ultimately dismissed with a finding of no misconduct.
This is a “gray” (not “black-and-white”) case: due to the deplorable secrecy in which judicial misconduct proceedings are conducted, and absent further information (such as a truly independent third-party (executive/legislative branch) professional investigation (though some steps were taken in that direction, by appointing an outside Special Counsel), or an independent “inspector general” for the judiciary — as opposed to the collegial presumptively biased judges themselves), we can contribute little more in this place than the documentation presented infra. All else is opinion and conjecture, upon which reasonable minds can differ.
Was this a case of Judicial Misconduct, or not? It was — and remains — quite controversial. “You be the judge” (or rather, jury). ◀
On Feb 20 2013, Judge Edith Jones (U.S. Court of Appeals, Fifth Cir, New Orleans (though Jones maintains her chambers in Houston); Houston Chronicle ⌥; Texas Observer ⌥; Texas Lawyer interview ⌥; American Constitution Society ⌥; Harvard speech ⌥), presented a lecture ⌥ at the University of Pennsylvania Law School, reviewing the federal death penalty. Her speech lasted more than an hour (including Q&A), was open to the public and well-attended, but (critically/decisively) it was not audio/video-recorded (hence crucial aspects of nuance/emphasis/tone/context/demeanor went missing), nor transcribed (hence exactly what was said is uncertain, though some had taken notes and send text-messages in real-time).
Some of the attendees took offense, believing some of Jones’ remarks exhibited racial (and other) bias, hence (potentially) constituted an incident of Judicial Misconduct.
On Jun 4 2013, a Complaint of Judicial Misconduct, with Exhibits ⌥ (redacted, presumably in conformity with judicial misconduct rules; less-redacted Complaint and Exhibits) was filed with the Fifth Cir Judicial Council, by a group of 13 Complainants (individuals and public interest organizations). Texas Tribune ⌥; New York Times ⌥; Law Prof Blogs ⌥; Wonkette ⌥; Alliance For Justice ⌥; People For The American Way ⌥; Kopf ⌥.
Upon request of the complainants (and the Chief Judge of the Fifth Cir), the case was immediately transferred to the DC Cir Judicial Council. Stewart-Garland Letter ⌥; MSNBC ⌥; Huffpost ⌥; American Constitution Society ⌥; CBS News ⌥.
One celebrated element of the Complaint (though seemingly a snarky/diversionary side-show to the main event) was a charge that, at a public hearing (appellate panel oral argument), Judge Jones once told a colleague Judge (James Dennis) to “shut up.” Tex Parte Blog ⌥; ABA Journal ⌥; Above the Law ⌥; audio ⌥.
On Aug 12 2014, the Judicial Council issued its decision, dismissing the Complaint, citing lack of evidence. Judicial Misconduct Decision ⌥ ⌥; 769 F.3d 762 (2014). Houston Chronicle ⌥; Washington Post ⌥; Alliance for Justice ⌥; Above The Law ⌥; Kopf ⌥; Simple Justice ⌥.
The Complainants appealed to the Judicial Conference (more properly called a “Petition for Review”). Judicial Misconduct Appeal ⌥. An Amicus Brief (in support of Complainants) was attempted to be filed, but was rejected (per foolish rule).
On Feb 19 2015, the Judicial Conference issued its final decision, affirming the decision of the Judicial Council. Judicial Misconduct Decision ⌥. Above the Law ⌥; Washington Post ⌥; William & Mary ⌥; National Review ⌥; Mother Jones ⌥.
It is the considered opinion of this reviewer (Walter Tuvell) that the case-in-chief of In Re Edith Jones (that is, the degree of Judicial Misconduct attributable to Judge Jones) remains indeterminate (and indeterminable), from the point-of-view of the general public (i.e., the American people, which is, after all, what really matters, as opposed to the judges themselves). That’s because of the aforementioned (supra) “deplorable secrecy” of Judicial Misconduct proceedings (by rule). The Judicial Council/Conference doesn’t/didn’t publish all their evidence/deliberations/findings (unless the target judge, Edith Jones, permits it, but she didn’t — for which I fault her). This, above-and-beyond the lack of a fully professional/adversarial (and not merely inquisitorial) investigation (mentioned supra).
Why is this a problem? The answer is: We cannot “trust” the (reviewing) judges (i.e., the Councils/Conference) — at least, not without “verification.” After all, lack of trust is the very reason Complaints of Judicial Misconduct are brought in the first place, and what the Judicial Misconduct process is supposed to address. And, for proof that the judges do indeed lie/cover-up for one-another when the mood suits them, one need simply consult Tuvell v. IBM.
In sum: The case of In Re Edith Jones represents a MAJOR FAIL — not necessarily ultimately on the part of Judge Jones herself (she played by the rules), but on the part of the judicial (“decentralized”-)self-review (Councils/Conference) process as a concept, as it exists today. For, it does not satisfy the basic requirement/criterion of open/sunshine fairness (“no man can be judge in his own cause”) — for the complainants, the judges, and We The People. Power Corrupts, and Absolute Power Corrupts Absolutely. That’s why God (& Montesquieu & Madison) invented Tripartite Separation-of-Powers/Checks-and-Balances.