Visiting her alma mater, the University of Texas, for a speaking gig arranged by the right-wing Federalist Society, Fifth Circuit Court of Appeals Judge Edith Jones was in fine form. In a speech as subtle and clever as an Ayn Rand novel, the judge whom New York Times columnist Bob Herbert once described as a throwback to the Dark Ages invoked the pantheon: Thomas Hobbes, George Washington, Maggie Thatcher, and Kenneth Starr. She called for a reformation that would restore the religious underpinnings of the law. She attacked certain isms, including “a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, (and) an individualism tending toward atomism.” (Now that’s criticism!) Turning her attention to matters horticultural, she railed against Post Enlightenment philosophy, which has eroded the “historical soil of Western belief” and thereby threatened to desiccate the religious roots of the Common Law. It all seemed like heavy midday fare for law students and undergraduates offered Papa John’s Pizza, soft drinks, and the opportunity to meet a federal judge on George W. Bush’s short list of nominees for the Supreme Court.
But there was more. Just as Aquinas once baptized Aristotle, Judge Jones chose to infuse some conventional religion into the very late Atheist of Monticello: “It was the view of near–of all the Framers, including Thomas Jefferson–that there was a natural and higher order governed by a creator, which is the ultimate source of law and morality. It is that connection between morality, religion, and self-government that I think we need to recover…” (In an aside directed to the Senate Judiciary Committee, which would vet her nomination to the High Court, Judge Jones made it clear that she is not suggesting a breach in what remains of the wall separating church and state. “I’m not making a constitutional claim here.… The Framers did not say that the Constitution is not a secular document.”)
Jones’ remarks were not limited to the religious and philosophical antecedents of the law. She spoke of the dangerous growth of the government’s regulatory power, exercised through agencies such as the IRS. She attacked industry-wide lawsuits, such as the tobacco suit that netted the state of Texas $17 billion to pay for the medical expenses the state has incurred treating tobacco-related illnesses. She complained that class-action suits, which she described as “redistributive justice,” serve to “line the pockets of lawyers.” And she questioned the merit of most workplace suits dealing with racial or sexual discrimination. “The number of employment suits is rising as the economy is prospering,” Jones said. “Why not simply take a better second job as revenge than go and file a lawsuit against your employer?”
Even if the judge meant finding a new job rather than moonlighting to get even, it is of record that she has no sympathy for workers who sue employers. In 1988, Jones was the dissenter in a 2-1 decision in favor of a woman who went to court because her supervisor and others had propositioned and groped her and placed pornographic material in her locker. When the plaintiff’s lawyer complained that the woman had filed suit because “one of the guys pinched her breast,” Judge Jones was unmoved. “Well,” she said, “he apologized.” And while Jones insisted upon the general and universal application of the law, her 1988 dissent in the sexual harassment lawsuit suggests that there are relative and different standards for different classes. Tit-pinching, ass-groping, and sexist graffiti are acceptable, Judge Jones suggested in a legal argument straight out of an Ally McBeal script, so long as they don’t occur among “white collar” workers. “We’re dealing with people whose standards are different,” she said from the bench in 1988.
In her brief speech at the law school, the judge failed to mention state executions, though last year she reversed the decision of Houston Judge David Hittner, a conservative Republican who ruled that Calvin Burdine didn’t get a fair trial because his attorney slept through parts of it. “A sleeping counsel is equivalent to no counsel at all,” Hittner said, when he ordered Burdine released from Texas Death Row or retried. In Burdine’s appeal, one juror testified that Joe Frank Cannon was asleep “quite a bit” during the trial, and a court clerk testified that she had seen him sleeping “for long periods of time” while witnesses were being questioned. Yet Jones and Judge Rhea Barksdale ruled that there was no way to know whether anything prejudicial happened to his client while Cannon slept: “In sum, on this record, we cannot determine whether Cannon slept during a ‘critical stage’ of Burdine’s trial.” Hittner also observed the sleeping attorney might have objected when the prosecutor said of Burdine, who is gay, that: “sending a homosexual to the penitentiary [for life] certainly isn’t a very bad punishment for a homosexual.” (Cannon was awake at a post-trial hearing, when he referred to Burdine and other gay men as “queers,” “fairies,” and “tush hogs.”) Burdine’s case continues on appeal and was recently heard reviewed by the full Fifth Circuit panel that included Jones, Barksdale, and Judge Fortunato Benavides, the dissenter in the original 2-1 ruling against Burdine.
Judge Jones would have avoided the death penalty issue altogether but for one small band of quiet protesters. Just as the judge concluded her list of “isms” threatening Western Civilization, with “moral relativism tending toward nihilism,” in they marched, like Visigoths crossing the Danube, six nihilists from the Coalition to End the Death Penalty. The five men and one woman took their seats on the second row, pulled pillows and blankets from their knapsacks, and feigned sleep–as Judge Jones, in a somewhat strained voice, pressed on with her speech.
Former Observer editor Louis Dubose is politics editor of The Austin Chronicle.