5th Circuit, Civil Rights, Edith Jones, Federal Judges, Judicial Divas, Legal Ethics, Minority Issues, Racism

How Edith Jones Helped Prove Eric Holder Right: Lessons I Learned About Race After Defending A Judge Accused Of Racism

Eric Holder is right: we are cowards.

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The public learned this week that the Judicial Council of the D.C. Circuit dismissed a complaint of judicial misconduct against Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit.   The order followed a year-long investigation by Special Counsel Jeffrey Bellin.  The roughly 70-page Report of the Special Committee appears nonpartisan, thorough, and fair.

The complaint stemmed from a lecture Judge Jones gave to the University of Pennsylvania Federalist Society chapter in February 2013.  Among the complainants’ claims was that, during her lecture, Judge Jones suggested she believed that members of certain races were predisposed to commit violent crimes.  With no recording of the event, witnesses disagreed about exactly what she said.  Was she talking about genetic determinism?  Or was she only referring to the objective fact that, for whatever reason, our nation’s prisoners are disproportionately black and Latino?  The subsequent independent investigation concluded that “whatever she said initially, it is clear that Judge Jones used the question-and-answer period to clarify that she did not adhere to such views,” rejecting the complaint’s version of her speech. The D.C. Circuit cleared her of all of the charges of misconduct, including this one.

When the complaint was first filed, I defended Judge Jones. Defending her was relatively easy….

The arguments made in the complaint were rather flaccid.  Even a little investigation revealed plenty of reasons to be skeptical about the self-serving and political motivations behind the complaint.  Quite simply, she is a good woman who was being treated badly by people with bad arguments and worse proof.  Many of the responses I received were supportive of both the judge and my defense of her. Plenty of others . . . were not.

Repeatedly — and in some cases, publicly — spectators shamed me for “defending a racist judge” and for harboring my own racism.  No holds are barred in online comments sections, but I (perhaps foolishly) tried to engage some of the criticisms sent to me via email or direct message.  Unfortunately, I quickly learned that accusing a person of racism, even without detailed knowledge, can create an irrebuttable presumption that the person is, indeed, racist.  There was no way out of the spiral once a critic accused me (or my former boss) of racial bias.  No evidence sufficed.  What if a miscommunication is to blame?  No, critics insisted that they knew what she or I really meant, no matter what I said now.  A statement interpreted out of context?  Nope.  Critics insisted that no one should make statements that are at all susceptible to misinterpretation, even out of context.  What about evidence of racial inclusion in one’s personal life?  “Give me a break.  ‘My best friend is black’ is the stalest defense there is,” was the reply.

Several people suggested that attending a predominantly black school as a white woman was itself a sign of my racism.  As best as I could tell, this meant that, if I truly cared about black people, I would not have “taken the spot” of at student of color who might have been in my place, were it not for me.

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I felt helpless in these conversations.  I am deeply devoted to my school.  I believe in its mission.  It is the place I’ve proudly called ‘home’ for several years of my life.  Race matters to me.  It matters to people I respect and care about.  I’m not immune to the discomfiting reality that bias of all sorts can be transparent to the person holding it.  I know that bias insinuates itself into frameworks, subtly shifting one’s thinking.  It is this fact about bias that makes it so pernicious.  Nevertheless, being asked to apologize for my choices and accomplishments was pretty hard to swallow.  I was sad more than I was angry.

Attorney General Eric Holder lamented the state of American dialogue on race, saying, “We know, by ‘American instinct’ and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character.”  In the same speech, Holder said:

“Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards. Though race related issues continue to occupy a significant portion of our political discussion, and though there remain many unresolved racial issues in this nation, we, average Americans, simply do not talk enough with each other about race. It is an issue we have never been at ease with and given our nation’s history this is in some ways understandable. And yet, if we are to make progress in this area we must feel comfortable enough with one another, and tolerant enough of each other, to have frank conversations about the racial matters that continue to divide us.”

Eric Holder is right.  We are cowards.

One of the many, many reasons for our cowardice is that “being racist” is often treated as a label that necessarily, irrevocably brands a person, without the need for further dialogue.  Of course, genuine racial bias ought to be identified and its consequences serious.  But even false charges of racism can be lethal to a person’s reputation, regardless of the charges’ merit.   Accusations of racism have almost become per se defamatory, like falsely accusing someone of being “unchaste.”  Racism is the new “loathsome disease.”  (Also, Ebola. Ebola is also the new loathsome disease, but that’s a matter for another day.)  The accusation alone often does the damage.

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Too often, we assume that the biased meaning must be the one the speaker intended.  Worse, we assume that no stray remark exists in isolation.  Even hasty phrasing must reveal the speaker’s core beliefs, according to this reasoning. Once the “racist” label attaches, asking for clarification or investigating the context seems unnecessary. This tendency prevents us from pressing the speaker on inconsistencies, challenging errors, or informing an ignorant person of relevant facts.

Perhaps Edith Jones’s foes used a savvy strategy for maligning her, despite Judicial Council’s dismissal of the misconduct complaint.  A charge of racism can be a poison arrow in a critic’s quiver. Slinging that arrow when the evidence does not support the claim, though, hampers the efforts of people trying to have the sort of dialogue Attorney General Holder calls for — and free, critical conversation generally. That conversation depends on people not being afraid that any reference at all to race may be misunderstood by their interlocutors or abused by their critics.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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