There have long been complaints about the temperament and civility of Judge Edith Jones of the New Orleans-based 5th U.S. Circuit Court of Appeals. Indeed, when I clerked on that court, Jones was rather infamous for her run-ins with colleagues and others.  Jones has been criticized for her extremely conservative views and, more importantly, her perceived intolerance (and hostility) for opposing views and colleagues.  This includes telling another judge to “shut up” in oral argument. Now, she is facing a formal complaint over a Federalist Society speech given at the University of Pennsylvania where she allegedly said that certain racial groups are predisposed to crime and that defenses like mental competence and actual innocence are “red herrings” among other bizarre claims.

Various law professors, ethics experts, and groups are behind the complaint. Since there was no recording allowed and no transcript, this extraordinary complaint was filed with declarations on what Jones states.

Jones’ comments occurred at a lecture entitled “Federal Death Penalty Review” at the University of Pennsylvania School of Law on February 20, 2013.

The complaints lists a controversial tenure of what are described as unprofessional and hostile conduct toward others. The most recent speech described as including the following statements:

*The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;

*Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;

*Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;

*Capital defendants who raise claims of “mental retardation” abuse the system;

*The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope”;

*Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;

*The country of Mexico does not provide and would not provide the legal protections that a Mexican National facing a death sentence in the United States would receive.

The complaint is based on The Judicial Conduct and Disability Act allowing “[a]ny person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” to file a complaint against the judge. See 28 U.S.C. § 351(a). Among the cited canons is Canon 2 of the Code of Conduct for United States Judges providing that “a judge should avoid impropriety and the appearance of impropriety in all activities.”

As someone who has both defended and charged federal judges in cases of misconduct, this complaint is impressive — an extraordinary collection of allegations that will test the often criticized ability of the federal courts to police themselves. Some of these statements attributed to Jones are quite bizarre like the suggestion of the death penalty as necessary to bring defendants closer to God (though that statement could have been made in jest or sarcasm).

In the past, I have been in an uncomfortable position as a legal commentator when Jones was suggested as a top candidate for the Supreme Court during the prior Bush Administration. Her poor reputation among some judges and lawyers is difficult to explain and remains highly personal or impressionistic. However, this complaint shows that her critics have increased and some of her comments offer a potential objective basis for discipline. To what extent is a judge allowed to express such views as a matter for free speech? Canon 4 states that a judge may engage in “extrajudicial activities, including lecturing on both law-related and nonlegal subjects.” This is followed with the caveat that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office [or] reflect adversely on the judge’s impartiality . . . .”

Notably, the complaint includes a request for a transfer to another circuit for adjudication under Rule 26, which states that “[s]uch transfers may be appropriate . . . where the issues are highly visible and a local disposition may weaken public confidence . . . .”

Many conservatives are likely to find statements from some liberal jurists equally disturbing. Even if these statements cross the line, what is the appropriate sanction. It seems doubtful that anything other than a reprimand would result. That is assuming that there is no question of false statements made in the course of any investigation. If Jones denies these statements, it could create a more serious question for the court if it concludes that the statements were made. If the statements were found to have been made by Jones, the question then becomes a difficult line between free speech and judicial impropriety. Ironically, Jones has never been a strong supporter of such constitutional rights as a judge but may now need to argue for a more expansive meaning.

What do you think? Should judges be allowed to discuss such views in public as a matter of free speech?

Here is the complaint: JonesComplaint_060413