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Why Don't Republicans Like Merrick Garland? (Don't They Know About Judge Edith Jones?)

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If Republicans closely examine the record of centrist judge and U.S. Supreme Court nominee Merrick Garland, they might find at least one thing to like a lot – his apparent role in protecting the famously conservative and controversial Fifth Circuit Court of Appeals Judge Edith Jones.

Garland, chief judge of the District of Columbia Court of Appeals and now nominated by President Obama to fill the seat of the late Justice Antonin Scalia, was appointed to handle an ethics complaint filed against Jones after she reportedly spouted racist remarks during a law school speech.

Jones, once a Houston lawyer, was appointed to the court by President Ronald Reagan in 1985. In her time on the court, Jones has pushed to streamline death penalty cases, questioned the legal reasoning behind legalized abortion, and invalidated a federal ban on owning machine guns. Jones is infamous for her decision to uphold the death sentence for a man whose lawyer slept through the entire trial. 

But it wasn't her opinions on the court that got her in trouble. Back in 2013, Jones either made a perfectly acceptable little speech on the death penalty at the University of Pennsylvania School of Law or made some of the most racist and bigoted public remarks ever to come out of a federal judge's mouth in modern times, depending on whose version of the story you believe.

Her remarks, as interpreted by five law students and one professor in the audience that day, were enough for a collection of civil rights experts and legal ethicists to file a complaint with the Fifth Circuit. The complaint, filed by 13 individuals and civil liberties groups, alleged that Jones made racially charged statements during the speech along these lines:

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; Mexican Nationals would prefer to be on death row in the United States rather than serving prison terms in Mexico; Defendants' claims of racism, innocence, arbitrariness, and violations of international law and treaties are really nothing more than "red herrings" used by opponents of capital punishment; Claims of "mental retardation" by capital defendants are also red herrings, and the fact such persons were convicted of a capital crime is in itself sufficient to prove they are not in fact "mentally retarded."

The complaint also called Jones out for an infamous exchange she had with fellow Fifth Circuit Judge J. Dennis back in 2011 when Jones was chief justice of the court. During a hearing on a criminal drug conviction, Jones got irritated that Dennis, one of the few liberal justices on the court, was asking questions. While the verbal spat with Dennis was recorded, somehow the speech Jones gave in Pennsylvania was not. 

The whole mess was serious enough that then-Fifth Circuit Chief Justice Carl Stewart passed the ethics complaint off to U.S. Supreme Court Chief Justice John Roberts, and he kicked it to Garland. Garland appointed a  committee of three DC Circuit judges to handle the complaints, including himself.

The committee then appointed Jeffrey Bellin, a professor at William and Mary Law School, to conduct the factual investigation, according to Mother Jones. The fact the complaint was filed was a big deal in and of itself. It was entirely out of the ordinary that the complaint got all the way to Garland and the special committee. 

Only Jones and Marc Bookman, a Philadelphia death penalty lawyer who attended her speech and helped file the complaint, were allowed to testify in the review. The lawyer representing Jones was allowed to cross-examine Bookman, but Jones testified behind closed doors, without any of the people who filed the complaint in the room, Mother Jones reports.  

The report Garland's panel issued stated that Jones denied saying the controversial things she was accused of spouting, including the bit about how she's skeptical of death penalty defendants who claim mental illness and the allegation that she said Hispanics are more violent and more prone to committing crimes.

However, the report did not include a transcript of Jones's testimony, or copies of the papers, notes and articles she submitted as proof that she hadn't said the things she was accused of saying. And since there isn't an actual recording of the speech, Garland and the rest of the panel let Jones off the hook. The panel recommended that the D.C. Circuit's judicial council, the final word on the ethics complaint, find in favor of Jones, which the council did. 

Garland was reportedly involved in this process from start to finish, according to Mother Jones. But there's one thing all of this does tell us. Jones was in a difficult situation, one that most justices never find themselves in, and Garland, a fellow justice on a circuit court, oversaw the process that allowed her to be privately judged and cleared of all accusations of wrongdoing completely out of the public eye.  

So now Jones is still comfortably on the bench, and Garland is off on what may be a quixotic quest to become the next Supreme Court justice.

All things considered, though, we can't help but wonder why the Republicans aren't more interested in Garland. Sure, his record on the big issues like gay rights and abortion is unclear, but he's at least proved that when it comes down to it, Garland protects his own fellow justices, even Jones.

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