We Need Someone to Judge the Judges

By Jordan Smith, The Intercept

17 November 14

udge Edith Jones is no stranger to controversy. The 65-year-old jurist has served since 1985 on the notoriously fractious 5th U.S. Circuit Court of Appeals, and is known for her conservative and often controversial opinions. She’s decided that a sleeping lawyer isn’t necessarily a bad one for a criminal defendant to have, claimed that bankruptcy filings have increased because of a “decline in personal shame,” and said that the legal system is corrupt in part because it has strayed from its religious underpinnings.

But it was a speech at the University of Pennsylvania School of Law last year that earned her a formal ethics complaint, filed by several Texas civil rights groups and a group of nationally known legal ethicists. In that speech to an audience of law students—billed as a federal death penalty “review”—Jones allegedly made a host of improper and racist statements that, according to the complainants, violated her duty to be impartial and damaged public confidence in the judiciary. According to multiple affidavits, Jones said, among other things, that minorities are more “prone” to commit violent crimes (when questioned about this, Jones hedged, saying she was talking about statistics and that, “sadly,” blacks and Hispanics commit more violent crimes than do others); that Hispanic nationals would rather be on death rows in the U.S. than in Mexican prisons (even though Mexico has outlawed the death penalty); and that questions of racism, mental retardation, and even actual innocence are simply “red herrings” raised by defense attorneys interested only in helping heinous murderers to avoid execution.

To bolster that last point, Jones allegedly said that inmates freed from death sentences have been released not because they were innocent, but because of “technicalities”—including cases where prosecutors hid evidence favorable to the defense—and offered an odd analogy, noting that “there were just as many innocent people killed in drone strikes as innocent people executed for crimes,” according to several affidavits.

Just as controversial as Jones’ statements, however, was the conclusion of a panel of federal judges who reviewed the sworn complaint: Since no one actually recorded her speech, the panel found, there was no way to prove that Jones actually said any of the things she’s alleged to have said—even though some of the statements did indeed violate federal judicial ethics rules. Jones declined to comment for this story.

The opinion, released in mid-October, is a remarkable work of circular logic that calls into question whether the federal judiciary is capable of policing itself. The process for investigating the ethical lapses of federal judges is deliberately opaque and secretive, and it lacks the due process guarantees underpinning the justice system that those judges are charged with administering—leaving complainants unable to monitor or participate in the disciplinary process, let alone understand how decisions are made within it. In 2013, 99 percent of the more than 1,000 complaints against judges considered for action were simply dismissed.

On paper, the judicial review process is fairly straightforward: The chief judge of the circuit reviews any complaints and either takes corrective action, dismisses the complaint, or appoints a special committee to investigate. In Jones’s case, the groups that filed the complaint—including the Texas Civil Rights Project, the National Bar Association’s Dallas affiliate, and the League of United Latin American Citizens (LULAC) —asked that the Fifth Circuit recuse itself from the process. Fifth Circuit Chief Judge Carl Stewart agreed, and U.S. Supreme Court Chief Justice John Roberts subsequently tapped the D.C. Circuit to take up the complaint. It did so by empaneling a special committee, hiring an outside lawyer to investigate, and then concluding that Jones’ behavior was within ethical bounds.

Moving the complaint to a theoretically impartial panel did nothing to cure the fundamental flaws of the current disciplinary system — flaws that are glaringly clear to anyone who reads the 71-page report concluding that Jones’ speech was kosher. The complainants were not allowed to see what “evidence” Jones provided to the panel in order to defend herself, nor were they allowed to attend hearings or meetings the panel convened, even when Jones testified. In concluding that Jones did no wrong, the panel clearly granted greater weight to Jones’ after-the-fact recollections about what she said (including, according to the report, repeated claims that she would never say such things) than to the six people who attended Jones’ presentation and filed affidavits confirming what she said.

“The process we’ve encountered, and are subject to, is opaque, secretive, and dishonest,” said Maurie Levin, one of the attorneys responsible for filing the Jones complaint. It’s that lack of transparency that frustrates legal scholars and allows some judicial misconduct to go unchecked.

There are in-your-face cases that from time to time earn some public attention and disciplinary action. Texas federal district Judge Samuel Kent, for instance, pleaded guilty to obstruction of justice just prior to going to trial on charges that he’d sexually harassed and abused two court employees (even after being sentenced to prison, he kept receiving a paycheck until he was formally impeached). And Judge Alex Kozinski, the chief judge of the Ninth Circuit, was formally admonished for posting degrading pornographic images of women to a public website.

But the majority of complaints against federal judges never see the light of day: In 2013, 1,219 complaints filed and 1,153 were dismissed. Only two, including the Jones complaint, were even referred for investigation. And with no statutory deadline for addressing the complaints (hundreds are regularly left pending at the end of each year), some seem to simply disappear into the ether. That’s what happened to a complaint filed by the Texas Civil Rights Project’s Executive Director Jim Harrington last year against Houston federal district Judge Lynn Hughes. According to Harrington, Hughes “repeatedly made outlandish racial comments” during a hearing on an employment discrimination case involving a plaintiff of Indian descent, including quoting Eleanor Roosevelt that “staffs of one color always work better.”

Hughes declined to comment on the status or the merits of the Harrington complaint (which he said he thinks he first learned about in a newspaper article), but said there’s a reason the vast majority of complaints made against judges are dismissed. “What happens is a large number of people who’ve lost a case attribute that to something other than that their case wasn’t very good or, in rare cases, the law is phenomenally stupid – and yet we have to apply it,” he said. “If you saw the tenor of most complaints, you’d understand.”

To date, Harrington hasn’t heard back from the Fifth Circuit. “I think they take a match to them,” he said of the judges’ attitude toward ethics complaints. “That’s the sad thing about the process. The judges are afraid of scrutiny.”

Indeed, in 2006, Supreme Court Justice Stephen Breyer headed up a committee tasked with reviewing the way the disciplinary system operates. While the committee’s report concluded that there is “no serious problem” with the handling of most complaints about judges, it found an unacceptably high error rate of 30 percent in the handling of “high-visibility” complaints that received national media attention. That, the report found, could lead the public to “question” the effectiveness of the disciplinary system and may “discourage the filing of legitimate complaints.”

Ultimately, there is a relatively easy fix to the persistent problems within the system, argues law professor Ronald Rotunda: Create an inspector general over the federal judiciary. “We have inspectors general all over the place,” says Rotunda. “[The] judiciary, in general, is the most transparent part of government. Everything that goes in is public, and everything that comes out is public. That is all to the good. So I don’t know why we should have this particular situation” where judicial oversight still remains so opaque.

Judges, as one might expect, disagree. They have greeted the idea “the way Dracula would greet garlic,” as Rotunda put it in a 2010 law review article on the subject.

Justice Ruth Bader Ginsburg went so far as to compare the idea to Stalinism, saying at a 2006 American Bar Association meeting that an inspector general “sounds to me very much like the Soviet Union was … That’s a really scary idea.” At the time, Iowa Republican Sen. Charles Grassley was floating a plan to create just such a position; the proposal, as well as a similar measure proposed by then-House Judiciary Committee Chairman James Sensenbrenner, ultimately died.

But Rotunda and others insist that an inspector general pose no threat to judicial independence. Federal judges are among the most protected actors in government: They have lifetime appointments and their salaries are guaranteed. Adding an independent check to their behavior would not threaten those safeguards. Indeed, Rotunda suggests that creating an inspector general would actually help judges to defend against frivolous claims. “Transparency inspires more confidence than secrecy,” he says.

Maurie Levin, one of the attorneys behind the complaint against Edith Jones, has appealed the D.C. Circuit’s ruling. There is no timeline for the appeal to be considered.