Being Offensive and Getting Offended: The Edith Jones Saga

A staunchly conservative federal appellate judge is invited to speak by the University of Pennsylvania’s Federalist Society about the death penalty.  It’s a potentially explosive mix, and unsurprisingly, it blew up.  Fifth Circuit Judge Edith Jones was grieved for saying, in effect, that blacks and Hispanics commit more crime, and more heinous crimes, than whites.  She said that no case has been made that systematic racism exists.

There was no record made of her speech and Q&A afterward so the content was reflected in the affidavits of those present.  Upon this record, a special committee considering the complaint of Judge Jones’ violating the code of conduct pieced together the words from the recollections of those present as well as judge Jones. It concluded:

It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are “disproportionately” involved in certain crimes and “disproportionately” present in federal prisons. Needless to say, this topic can be extremely sensitive, and we do not doubt the affiants’ and witnesses’ repeated statements that they found the remarks offensive. Judge Jones herself recounted that she “was uncomfortable about alluding to such facts.” Jones Recollections 20-21. We recognize that, without an explanation or qualification, saying that certain groups are “more involved in” or “commit more of” certain crimes can sound like saying those groups are “prone to commit” such crimes.

There can be no question that Judge Jones’ simplistic expression raises huge questions of bias.  Does this suggest that she’s saying these groups are “prone to commit” such crime?  Clearly. There is no other possible reading. And yet:

But we must consider Judge Jones’ comments in the context of her express clarification during the question-and-answer period that she did not mean that certain groups are “prone” to criminal behavior. In that context, whether or not her statistical statements are accurate, or accurate only with caveats, they do not by themselves indicate racial bias or an inability to be impartial. Rather, they resemble other, albeit substantially more qualified, statements prominent in contemporary debate regarding the fairness of the justice system.

Blacks commit more crimes and worse crimes, but they’re not prone to do so. It all depends on what the meaning of “is” is, right?  This is the sort of parsing of words and meaning that only a lawyer can love, but when they come from the mouth of a 5th Circuit judge, and clearly indicate a belief that blacks are criminals, regardless of whether they’re prone to be or just, I dunno, accidental criminals, they’re still more likely to be criminals because they commit more crimes.

But then, Judge Kopf at Hercules and the Umpire points out that as Attorney General Holder implored lawyers and judges to have a real discussion of race in the law.  If we’re to do so, that necessarily involves views that are racist, even if those speaking don’t realize it or think so.  Such a discussion may involve a judge speaking off the cuff, expressing views poorly.  If such a discussion is to be real, then some of it is likely to be jarring.

This isn’t necessarily a bad thing.  We see the flagrant disparate impact of criminal law on blacks and Hispanics, and just as some of us explain it as the outcome of a racist system and nation, we should expect others to disagree and argue that it’s, well, not.  You see, if someone believes the system isn’t racist, then what other argument is there?  And the argument is, in effect, one that blames blacks and Hispanics without regard to police going after them while leaving the white folks (more) alone, or ignoring the effects of social racism on culture, choices, etc.

No, there is no honest way for Judge Jones to talk her way out of her words being racist.  No, there is no way to have an honest discussion without someone, Judge Jones or someone like her, sprewing stupid racist conclusions.

And yet, with this very serious, very damning scenario that could and should have given rise to the most serious concerns about inherent racism in the judiciacy, this arose to suck the importance out of the room:

Here is how the “Appeal” describes two student affidavits:

The affidavits from attendees are categorical that Judge Jones’ comments diminished confidence in and respect for the judiciary’s integrity and impartiality:

As an African American male, and as someone who is interested in the areas where race and law intersect, I was made uncomfortable by her comments on
race and found them offensive.
Exhibit B, #35.

From speaking with others after the lecture and observing the reactions of others during her remarks, she upset and offended many of the attendees in the room tremendously.  Exhibit C, #14.

Id. at p.18. (For all of of the sworn statements, click here: affidavits.)

Just as we hold Judge Jones to the nuance of her words as reflecting her beliefs, so too do we look to the manner in which her audience reacted.  Rather than express their concern that the target of their attention, a person who sits in judgment of others, was offensive, they cared more about how it affected them. They were offended.

It made them uncomfortable. They were offended.  In the minds of these students, it wasn’t about Judge Jones burning blacks and Hispanics as much as it was about Judge Jones’ words hurting their feelings.  Judge Kopf noted:

The practice of law is a tough business. It is particularly tough business when the death penalty is involved. As law students who are about to become lawyers, one would hope that they develop very tough skins. They will not be able to survive in the real world if they don’t. More importantly, they will do their clients a huge disservice if they hold themselves out as advocates while at the same time being oversensitive about their personal views. Frankly, that law students are made to feel “uncomfortable” or “offended” while they study to become legal professionals is a good thing.

As lawyers, they better damn well get over the infantile but pervasive expectation that the world exists to make them feel good, to please them, to do nothing to ever hurt their feelings.  More to the point here, if they want to worry about anyone’s feelings being hurt, how about all those blacks and Hispanics sucked into a legal system where the judge assumes that they’re there for no better reason than that blacks just commit more and worse crimes.

What Judge Jones said was pretty damn bad, and, in my view, reveals a very serious bias.  If we shut down discussion, this won’t surface and can’t be addressed. What should become of Judge Jones isn’t my concern here.  But what should become of the students who are more worried about their feelings than the damage Judge Jones can do is my concern.

Would someone please hand them a dime? They have no business in law school, any more than a judge has business being on the bench if she holds racist beliefs.


15 thoughts on “Being Offensive and Getting Offended: The Edith Jones Saga

  1. william doriss

    *They have no business in law school and more than a judge has business being on the bench if …*
    Should read, “They have no business in law school and NO more than a judge has business being on the bench…” No? Otherwise, makes no sense, not to me anyhow.

  2. william doriss

    This is an interesting topic. There is nothing more problematical in the law than unknown and unspoken biases. That Judge Edith Jones spilled the beans at this Federalist Society symposium I take to be a rare and edifying moment for all concerned. I do not believe she should be censured. I do believe she should be “educated”, as in Continuing Education. Perhaps a remedial school for judges who display or reveal awkward biases which are no longer acceptable to the public at large. After all, judges are public servants, I suppose, who are performing our will in the context of the Constitution, stare decisis and rules of procedure. They get paid, and the pay is not that bad, IMO. I’ll do the job for half price!

    As for Eric Holder, when I contacted U.S. Justice in 08 regarding my civil rights complaints against City and State, the fellow answering the phone informed me that A.G. Holder had ordered from on High that
    Justice would not entertain (my word) “reverse discrimination cases”. My complaints were of a reverse
    discriminatory nature. I claimed, and claim to this day, that certain black and Hispanic individuals pointed the finger at me in a “discriminatory” manner. Racism is most certainly NOT a one-way street, as many of my liberal travelers seem to think, without much hesitation or afterthought.

    This is a point missed by Mr. Holder. I was hoping for better from the attorney general and our President for whom I voted. I am disappointed. However, this is an important discussion which needs to be held.
    The fellow answering the phone at Justice would not identify himself. Consequently, I did not know, nor did I ever find out who I was actually communicating with. He said he did not have to. I find this utterly bizarre that someone speaking for U.S. Justice does not have to identify himself. Maybe the FBI can help me?

  3. alpharia

    I suppose the learned judge should of said that “xxx group is statistically more likely to be convicted of certain crimes (and henious crimes..whatever they may be??) than yyy group” though humans don’t think like that normally and words like facts get tossed around out of context without intent to harm.

    The question should now be asked (and I gather that is what she was alluding to) why is xxx group convicted moreso than yyy, where is equitable sentencing?

    Maybe these students should think of that instead instead of having there feelings hurt by words and facts and what they think the world should be like in their own conformational biases, and get ready for the real world of law (or whatever they end up doing) and either make a difference or STFU.

  4. silence dogwood

    I don’t for a moment think that the criminal justice system isn’t defective in many regards, and especially so when it comes to minorities. However, there is a perfectly valid way to make the statements made by Judge Jones (at least from what i gather from this post) without being racist (and while i disagree about her conclusions).

    Hypothesis 1:
    All people (white, black, Asian, Hispanic, etc) are born with no predisposition to crime.

    Hypothesis 2:
    The propensity to commit most crime can be determined by a number of factors such as: family income, educational level, access to health care, quality of public education, family structure, peer group, exposure to lead paint, access to organic food, # of ipads owned, etc. – essentially nurture over nature

    Hypothesis 3:
    The contributing factors to crime (above) are not distributed evenly amongst demographic groups for various reasons (i.e. the legacy of slavery and segregation has contributed to blacks having lower household incomes vs. whites)

    Those groups who have a larger share of those “contributing factors” (in this case many minority groups) would be more “prone” to commit criminal acts – not due to their race, but due to the fact the negative environmental factors (say abject poverty and failing public schools) that would facilitate criminal behavior are more prevalent within their demographic group.

    I personally don’t think the above comment to be incendiary or racist – but i expect others may disagree. Nor, do i think that the above hypothesis even remotely explains the disproportionate share of minority “interaction” with the criminal justice system…but it probably explains some (how much i have no idea) part of it.

    1. SHG Post author

      We can argue about individual factors and their application/significance/impact. It’s fair argument. Too bad Judge Jones didn’t and instead offered the simplistic conclusion.

  5. EH

    You’re correct about one thing to be sure: talking about this is hard!

    There can be no question that Judge Jones’ simplistic expression raises huge questions of bias. Does this suggest that she’s saying these groups are “prone to commit” such crime? Clearly. There is no other possible reading.

    But… this is true.

    It’s just that the reasons behind it are a bit wonky: the fact that a 20 year old black man is more likely to commit a violent crime than a 20 year old white man has nothing to do with the fact that he’s BLACK. At least not directly. Instead, it has more to do with the secondary effects of racism: poverty (which relates to racism) and bad education ( which stems from racism, and poverty, among other reasons) and bad alternative options (racism, and poverty, again) and so on. It isn’t that he’s likely to be violent because he’s black, it;’s that he’s more likely to be poor and uneducated and with no alternatives, and people in that category are generally bigger problems regardless of race.

    So, when someone days “On average do black men have a higher propensity for violence?” the answer can’t just be “no.” Denying that reality doesn’t make sense. What we CAN point out is that that is the wrong framing. It is more accurate to ask whether he has any propensities for violence beyond those propensities that are society’s fault, and for which we should not necessarily hold him responsible.

    1. SHG Post author

      I realize you’re attempting to introduce the “right reasons” for the wrong expression, but this was just an incredibly poor handling of it. You’re trying to be too cute. You failed.

  6. John Barleycorn

    Edith Jones a poster child for “open discussion”?

    Damn, and here I was nearly certain I consumed enough hollandaise yesterday to keep any hallucinatory flash backs in check for months. Silly me.

    Carry on with the thrashing of “feelings” from every corner and from every station at will however.

    P.S. If I fasted for three days I wonder if I could channel Edith’s three dimensional chess dreams of making it to the top of the short list for a supreme slot and predict how she would dress for the confirmation party? She is ready! I wonder if the students are?

    P.S.S. There is no shortage of people blawing about balloons and justice but there certainly is room for a student movement that solicits judges to take nitrous balloon hits for justice.

      1. John Barleycorn

        I would do three or four of those under different circumstances.

        But alcohol consumption AND a shucking knife do not mix very well when researching federal judicial temperament from the cheap seats.

        If you would have posted the above shot concoction in the same font as the Judicial Council uses to proclaim itself and added a foot note or two of what beers go best with those shooters in-between shots I would have said fk it and had a few (even if I had to used caned oysters).

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