Speaking Truth To Power Is Only Noble When You Are Actually Speaking The Truth: The Failed Complaint Against Judge Edith Jones
For Judge Jones, the victory must be bittersweet.
This week, a special committee of the U.S. Judicial Conference denied further review of the misconduct complaint against Hon. Edith Jones of the U.S. Court of Appeals for the Fifth Circuit. The complaint had alleged that Judge Jones had made improper remarks during a February 2013 lecture on the death penalty at the University of Pennsylvania.
The Committee on Judicial Conduct and Disability issued a memo of decision after reviewing the D.C. Circuit Judicial Council’s earlier finding. The D.C. Circuit had dismissed the complaint, relying on a year-long investigation by Special Counsel Jeffrey Bellin. This week’s decision lays to rest a protracted battle between Judge Jones and the complainants, which included LULAC, particular chapters of the National Bar Association and the NAACP, the Texas Civil Rights Project, and others.
For Judge Jones, the victory must be bittersweet, as victory must be for anyone who must defend herself against serious formal allegations. The process worked. She was cleared of the misconduct charges. But her opponents still managed to get much of what they wanted, despite their formal defeat. And that says a lot about what they were really after in the first place.
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Reputational Damage
The complaint alleged that Edith Jones made comments during her February 2013 lecture indicating that she believed that members of certain races were predisposed to committing violent crimes. Judge Jones went out of her way to clearly state that she did not believe what her accusers claimed. Nevertheless, charges of racism compel emotion, even from people with insubstantial knowledge of the facts, as I myself learned.
The Judge’s detractors have lost with the Judicial Conference, but they may have won with Google. For years to come, internet searches for the Judge’s name will yield results covering the horrible accusations, no matter that she was eventually cleared of the claims. Edith Jones’s opponents unfairly stained her reputation with the indelible ink of a racism charge. I doubt an apology is forthcoming.
Activist Theatre
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The individuals and organizations complaining of misconduct won points with fellow liberal activists for boldly pursuing a claim against a conservative judge… even if they lacked evidence that would warrant a formal claim. They gave the impression that they were fearlessly taking action in the name of (their particular version of) justice. They get to look like gutsy crusaders against the Right-Wing Apocalypse, speaking truth to power.
What they seemed to have neglected is that “speaking truth to power” is only noble when you are actually speaking the truth. Otherwise, your efforts are just activist theatre. Employing that tactic doesn’t prove your righteous commitment to your cause, it shows that you’ve lost your way.
What evidence supports the inference that the complaint here was a piece of activist theatre, not a legitimate claim of judicial misconduct? The case suffers from a proof deficit, at the very least. The lecture was not recorded. The complaint offers six affidavits supporting the claim that Judge Jones made the improper remarks at issue. None of the affiants made their statements immediately after the lecture. All of them relied on details provided by someone else.
Anti-death-penalty attorney Marc Bookman was the primary affiant. Yet his affidavit was based heavily on the lecture notes of another person who attended the lecture. The Assistant Federal Defender who wrote the notes did not testify herself. She shared her notes with Bookman about a month after the Penn lecture, when she heard that Bookman was asking around for witnesses to the talk. Page 20-21 of the Special Report notes that Bookman’s affidavit is “almost identical to” the AFD’s notes and that “it appears that Bookman took the document, made slight changes and adopted the resulting document as his affidavit.” There are many reasons why the woman may not have been willing to participate in the complaint proceedings. However, the Special Counsel’s Report, on page 26, notes that the Assistant Federal Defender told the Special Counsel that she believed the media coverage of the ensuing scandal “was unfair to Judge Jones.”
The other five affidavits were based heavily on Bookman’s affidavit. The affiants were students who had been solicited by Bookman, a University of Texas Capital Punishment Center professor, and a University of Pennsylvania law professor. According to Special Counsel, on page 21 of the Report, “those affidavits contain fewer details than the Bookman affidavit and explicitly reference and incorporate the Bookman affidavit.”
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So, five students signed on to pre-drafted affidavits that parroted Bookman’s affidavit. Bookman’s affidavit was nearly a word-for-word reproduction of another attorney’s lecture notes. That attorney wouldn’t testify against Judge Jones and thought that later sensational allegations of racism were unfair. If you credit the critics rallying against Judge Jones with a modicum of good legal judgment, they knew or should have known from the start that the complaint was fatally flawed. Yet they “bravely” pushed forward. That’s Tony Award material.
Raising Funds For Awareness of Their Cause
The original filing against Judge Jones conveniently coincided with a fundraiser held by one of the organizations closely associated with the complaint. Marc Bookman, the main affiant in the complaint, heads the Atlantic Center for Capital Representation. The First Annual ACCR Fundraiser took place on June 6th, 2013. Bookman and his cohort filed their complaint against Judge Jones on June 4, 2013. The lecture during which Bookman claims Judge Jones made the offensive remarks at issue took place several months earlier, in February 2013.
With no set statute of limitations on judicial misconduct claims, and months already passed since events giving rise to the complaint, how likely is it that the timing was merely a coincidence? Press coverage of the judicial misconduct allegations made for a whole lot more media buzz than the ACCR could have otherwise dreamt of. Strategic timing is no sin, but the optics are bad.
Using professional misconduct proceedings to harm an ideological rival is worrisome. Even if you oppose the death penalty (as I do), or you disagree with the conservative principles Edith Jones embraces (though I don’t), there’s no reason to be proud of this misconduct complaint. It was weakly supported, politically motivated, self-serving, and opportunistic. It’s dirty pool. Even if critics of Edith Jones managed to do most of the damage they likely intended, no one should adopt their strategy.
UPDATE (2/23/2015, 3:30 p.m.): Tamara Tabo served as a law clerk to Judge Jones, as noted previously in these pages).
Earlier: A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones
How Edith Jones Helped Prove Eric Holder Right: Lessons I Learned About Race After Defending A Judge Accused Of Racism
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 [email protected].
