“Pattern of misconduct" demands full investigation of Fifth Circuit Judge Edith Jones

A series of “inflammatory and racially charged remarks” and other misconduct demand a full investigation into Judge Edith Jones of the Fifth Circuit Court of Appeals, Alliance for Justice said Wednesday.

Judge Edith Jones
during a trip to Iraq

Judge Jones has engaged in “a pattern of misconduct that calls into question her ability to uphold the rule of law with impartiality, fairness, and integrity,” according to AFJ President Nan Aron.

Aron’s conclusion is part of a five-page letter sent Thursday to Chief Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit.

AFJ wrote the letter in support of a complaint against Jones  filed by more than a dozen civil rights groups, attorneys and legal scholars.  The complaint has been transferred to the Judicial Council of the D.C. Circuit for review.

The complaint cites a series of statements about race, capital punishment, the intellectually disabled and the people of Mexico made by Jones in a speech earlier this year to a chapter of the Federalist Society.

But, as the letter notes, those remarks are “part of a long pattern of prejudicial statements and actions by Judge Jones on issues that can and do come before her on the court,” statements
and actions that violate the Code of Conduct for federal judges. Among those statements and actions:

• Reportedly complaining that a last-minute motion to stop an execution forced her to miss a birthday party.
• Excoriating a lawyer for seeking to delay an execution – even though the Supreme Court had just taken a case that could have a crucial impact on whether his client should be executed.
• Repeatedly demonstrating hostility to employment discrimination suits, once telling law students that alleged victims should “take a better second job instead of bringing suit.”
• Questioning the wisdom of the Civil Rights Act of 1964.
• Telling a fellow judge, in open court, to “shut up.”
• Suggesting time and again that religious doctrine takes precedence over the law.

Given this history, and many other examples, Aron says in the letter, “We were dismayed, but sadly not surprised” by Jones’s most recent remarks, which included assertions that:

• The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution. 
• Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities. 
• Claims of racism, arbitrariness, and even of innocence are simply “red herrings” used by opponents of capital punishment. 
• Capital defendants who raise claims of “mental retardation” abuse the system. 
• Mexican nationals would prefer to be on death row in the United States rather than in prison in Mexico.

“Alliance for Justice asks for a full investigation into Judge Jones’ misconduct and violations of the Code of Conduct for United States Judges,” the letter states.

UPDATE, JUNE 14: Watch the news conference by the New Orleans NAACP and other organizations concerning Judge Jones.

Scalia’s latest: Unethical or merely appalling?

We’ve all seen it before:

• Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
• Justice Antonin Scalia skates right up to the line of ethical impropriety.

But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.

Justice Antonin Scalia

Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.”  This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”

To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not.  He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t.  He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws.  (We have more on the need for the Voting Rights Act on our website here.)

But most disturbing was this.  According to The Wall Street Journal, Scalia said that:

merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.

There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.

We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well.  It was the topic of this brief AFJ documentary:


But since it does not, Scalia is off the hook no matter what.

If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible.  The code says:

A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]

Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”

That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.] 

This is not the first time Justice Scalia’s behavior has raised questions about ethics.

• At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission. 
• In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society.  While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers.  Justice Samuel Alito spoke at the same event last year. 
• As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States.  The purpose of the Koch retreats is overtly political.

Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.