Jim Brown hits one out of the Park: Edith Jones and other ultra conservative ideologues tarnish the reputation of the 5th Circuit Court of Appeals

Thursday, May 28, 2009

Baton Rouge, Louisiana



Before the President made his choice this week for a new nominee to fill the coming vacancy on the United States Supreme Court, the White House undertook a nationwide search. There were parameters. The pick was certain to be a woman. But by even the widest stretch of standards to be met by any nominee, one thing was pretty clear from the start. No judge serving on the Fifth Circuit Court of Appeals in New Orleans was given the slightest consideration.

It’s true that the Fifth Circuit is heavy laden with Republican appointees. But that has not been a major stumbling block for the new President so far. His most recent major appointment, the new Ambassador to China, went to Republican Governor John Huntsman, who had set up an exploratory committee to run against President Obama in 2012. And the final choice made on Tuesday of this week, Court of Appeals Judge Sonia Sotomayor, was initially appointed to the federal bench by President George H. W. Bush.

Being a federal court of appeals judge has become almost a prerequisite to ascending up to the Supreme Court. Every present judge on the Court was elevated from the federal court of appeals system. So one would think the three women on the Fifth Circuit Court of Appeals, all from either Louisiana or Texas, would have been given a perusal review. No way, say the close court watchers. Their qualifications or lack thereof, speak for themselves.

The chief judge is one Edith Jones, who received international notoriety a few years back when she ruled that a fellow named Calvin Burdine, convicted of murder and sentenced to death row, received a fair trial even though his court appointed lawyer slept through a good bit of the trial. A sleeping attorney didn’t’ seem to bother Jones, who wrote in upholding the conviction that “we cannot determine whether the defense counsel slept during a critical stage of Burdine’s trial.” So, according to Jones, it’s OK to nap a bit during a trial if you are representing a defendant who could be (and in this case was) given the death penalty. Just pick and choose when you doze off. 

Her colleague on the Fifth Circuit, Judge Priscilla Owen, also has a colorful and controversial list of questionable decisions. Times Picayune columnist James Gill outlined a litany of dubious rulings in a recent column, when he cited one example of Owens “setting on a case so long that a quadriplegic kid’s respirator failed before he could collect a dime of the $30 million awarded by a jury against Ford Motor Co. several years earlier.” Former US Attorney General Alberto Gonzales, once a colleague of Owens on the Texas Supreme Court, described one of her opinions in a parental consent case as “an unconscionable act of judicial activism.”

And then there is Judge Edith Clement. She was in the hunt to move up to the nation’s highest court back in January of 2006. Clement was reportedly a close friend of Laura Bush, and some odds makers had her at the top of the potential candidates’ list. NBC news even broke in to regular programming to state the Clements was the choice. But then her record on the Fifth Circuit was put under the political microscope.

Press reports immerged where Clement was called everything from a “Secrecy Freak” to a “Closet Fascist.” News articles also appeared questioning her judgment in taking free trips (called junkets for judges) paid for by conservative foundations that fund lawsuits that could end up in Clements’ court.

The New Orleans Times Picayune wrote a blistering editorial concerning the veil of secrecy Clement insisted upon in her trials. In one such case that, as many of you know, I followed quite closely, Clement dropped a curtain around the whole trial with gag orders, secrecy in picking jurors, allowing the withholding of critical evidence, and even preventing the press from writing anything about the jurors. Of Clements’ rulings, the Times Picayune had this to say: Clement “took the unprecedented step of suggesting that the media call her to get permission before publishing anything about the jurors. The idea of the media or any citizen having to ask the government for permission to exercise free speech is patently un-American.”

So with the labels of secrecy freak, closet fascist, and ruling in a way that is “patently un-American,” Clements’ hopes and chances of breaking into the first team line up of the Supremes quickly crashed and burned.

The Fifth Circuit regularly leads all appeals courts throughout the country in its decisions being over turned by the U.S. Supreme Court. In an expose’ of the Fifth Circuit’s recent rulings, the Times Picayune quoted both Justices on the Supreme Court as well as prominent law professors who regularly lambasted verdicts handed down in New Orleans. University of Houston law professor David Dow said it seems clear that the Supreme Court “has lost confidence in the Fifth Circuit’s handling of capital cases.” And recently retired Justice Sandra Day O’Conner was equally blunt in criticizing the Fifth Circuit saying it was “paying lip service to principles of jurisprudence, and that often the Fifth’s reasoning “has no foundation in the decisions of this court.”

It’s a shame for those who have to deal with the Fifth Circuit that its standing is so soiled, and that the reputation of some of its members has degenerated to the point of such serious criticism. During the civil rights era, Louisiana federal judges like John Minor Wisdom, J. Skelly Wright and Albert Tate were held in high regard nationally. Their work was admired and quoted in the nation’s best law schools. But with such a mediocre judicial stature today, Louisiana won’t be in the running for one of its own to move up to the nation’s highest court.

Federal court watchers have a name for federal judges who lack the scholarship, the temperament, the learning, and are simply in the wrong occupation. They are called “gray mice.” It seems pretty obvious that the Fifth circuit Court of Appeals is full of such critters. Unfortunately, there is not much, short of impeachment, the discipline system can do about them. But the court’s continuing incompetence places one more stain on the reputation of Louisiana.


Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.”

-Edmund Burke

Peace and Justice

Jim Brown 

Jim Brown’s weekly column appears in numerous newspapers and websites throughout the south. To read past columns going back to 2002, go to www.jimbrownla.com.

4 thoughts on “Jim Brown hits one out of the Park: Edith Jones and other ultra conservative ideologues tarnish the reputation of the 5th Circuit Court of Appeals”

  1. I have some very definite ideas about the integrity of “the Fifth Circus”. SOP is in possession of separate Complaint(s) of Judicial Misconduct I filed against 12 Judges on 4/14 and 16, 2009. Perhaps Sop can post them (I am not that “technologically advanced”). I am about to name 3 more Fifth “Circus” Judges to the “hit parade”. The cases which are the genesis of my Complaints demonstrate INCOMPETENCY or CORRUPTION, or BOTH. Twelve to 15 Fifth “Circus” Judges could not all be so stupid simultaneously, causing me to opine that they are “crooked”. The ineffectiveness of the Court’s procedures for dealing with Complaints of Judicial Misconduct is best demonstrated with a concrete example: After Judge (former) Sam Kent of the Southern District of Texas had a Complaint filed against him for sexual misconduct, the Court investigated and decided to issue a written reprimand. Earlier this year, Kent pleaded guilty to one count of obstruction of justice with regard to the Complaint. He was sentenced to 33 months in the Federal Penitentiary, which he will begin serving in July. WHERE IS THE GODDAMNED FBI?

  2. On May 27, 2009, Judge Edith Jones of the Fifth “Circus” issued a letter to the attorney for former Federal District Judge Sam Kent of Galveston, Tx., denying Kent’s application for disability retirement. SOP should consider posting Judge Jones’ letter to the Web-Site. Recall that Kent was accused by a female Staffer of the Galveston Court of sexual battery, and that the initial investigation by the Fifth “Circus” resulted only in a “written reprimand” to Kent in September 2007. Earlier this year, Kent pleaded guilty to one count of obstruction of justice for having given false testimony in connection with the investigation of the complaint against him by the female Staffer, and he has been sentenced to serve 33 months in the Federal Penitentiary. Several points: (1) I believe ALL of Kent’s medical records should be made public, because he waived any confidentiality when he applied for taxpayer financed disability benefits; (2) Judge Jones’ denial of disability, while commendable, does not address the inadequacy of the initial investigation, which resulted in a “slap-on-the-wrist” written reprimand. Was the slap-on-the-wrist the result of incompetency, corruption, or both? (I lean towards the latter possibility – “they” made a conscious, wilful decision to “circle the wagons” , and to protect one of their own).The public deserves an answer. (3) If Kent would molest a female Staffer, and then lie about it to investigators, what else might he have done during his 20 years or so on the Bench, most of which were served while he was an alcoholic (he says he quit drinking in March 2007)? Did the litigants and attorneys who appeared before him truly get “justice” in his Court, or were the results in cases he either decided or influenced dictated by “something else”? Doesn’t the Fifth “Circus”, with jurisdiction over cases involving misconduct by Judges, have an obligation to “open Pandora’s box” and investigate ALL of Kent’s behavior while he sat on the Federal Bench? This is INCOMPETENCY and CORRUPTION going to the very integrity of the Federal Judicial System within the Fifth “Circus”, and it doesn’t stop with one former District Judge from Galveston.

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