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.