On being “uncomfortable” and “offended”–the ethics complaint against Judge Jones and the student affiants

That students have devolved from budd[ing] scholars and statesmen to butthurt babies is, sadly, a trend that’s been happening for quite a while now, as higher ed has facilitated, if not encouraged, them to elevate their feelings above all else. But why is there no grown up in the room?

Scott H. Greenfield, Sensitive Sally Smacks Special Snowflake Student Silly, Simple Justice (May 24, 2014).

I return to the ethics complaint against Judge Jones that I discussed yesterday. Specifically, I write about two affidavits submitted by two students, one of whom was pursuing an advanced degree in criminology (and perhaps a law degree) and the other a law degree. I concentrate on the issue of race, and whether Judge Jones’ statements reflected racial bias such that students were justified in being “uncomfortable” or “offended.”

Background

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.)

It is important to stress that the student affidavits are odd in one critical aspect. Instead of reciting what they heard, they frequently adopt by reference what another person heard, that is, the recollections of Marc Bookman, the Director of the Atlantic Center for Capital Representation. As regards Judge Jones’ comments on race, Bookman’s affidavit makes clear that Judge Jones did not mean to imply that Blacks or Hispanics were inherently more murderous. Specifically, Bookman stated that Judge Jones said “she did not mean that certain races were ‘prone’ to such violent behavior – just that, ‘sadly,’ they happened to engage in it more often. She noted there was no arguing that ‘Blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly” people from these racial groups do get involved in more violent crime.” Bookman Aff. ¶ 28.

Here is what the Special Committee concluded regarding race and Judge Jones statements:

 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. 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.

The evidence also shows that Judge Jones used the term “red herring” to signify her view that a challenge to the death penalty on the ground that it is administered in a racially discriminatory manner is nonviable. When we consider this in the context of a discussion of McCleskey v. Kemp, 481 U.S. at 292, we again cannot find that such a view indicates improper bias or misconduct.

Report of the Special Committee, at pages 27 and 28 (footnote omitted).

In a footnote to the foregoing conclusion, the Special Committee wrote:

See, e.g., Eric Holder, U.S. Attorney General, Remarks at the 11 Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) (“[I]t’s time to ask tough questions about how we can . . . address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.”); Marc Mauer & David Cole, Five Myths About Americans in Prison, WASH. POST (June 17, 2011) (“Yes, African Americans and Latinos disproportionately commit certain crimes. But in a 1996 study of crime rates in Columbus, Ohio, criminologists from Ohio State University concluded that socioeconomic disadvantages ‘explain the overwhelming portion of the difference in crime.’”); Charles Ogletree, The Burdens and Benefits of Race in America, 25 HASTINGS CONST. L.Q. 217, 228 (1998) (“African-Americans are grossly over-represented in the criminal justice system. In part, this is due to the fact that, per capita, black people do commit more crimes than whites. However this fact alone does not account for the disparities in the crime statistics. In fact, since the 1970s, rates of black crime have been stable, even though the rates of prosecution have increased exponentially.”); id. at 228 n.48 (“A number of studies have documented the unusually high arrest rates for blacks suspected of crime compared to other groups.”); id. at 236-37 (“The problem is that the decision-making process at every stage . . . is discriminatory and thus subject to bias (racial or otherwise) in its applications.”); see also U.S. SENTENCING COMM’N, 2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl.4, available at http://www.ussc.gov/sites/ default/files/pdf/research-and- publications/annual-reports-and-sourcebooks/2012/Table04.pdf (providing statistics on race of offenders in each primary offense category).

Id. at n. 11.

My concerns about the student affidavits

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 I have said in another context (that subjected me to howls of criticism), they ought to “get over it.” Law students must learn that taking on the representation of a real live human being means that the task is never about them. We don’t need “butthurt babies.” We need tough-minded lawyers.

RGK

43 responses

  1. Legal education holds feelings in total contempt, Most law profs are Hessian trainers,. and those who have not practiced are usually the worst. Get over it is the standard deans response to student complaints. Not much has changed since Stone’s Legal Education on the Couch..I might add I have been around long enough to remember your genertation had more hurt feelings than most or maybe I was more offensive when young. Most law students leave to be as mean and nasty as the rest of us.
    Affidavids are one side of our sad political rhetoric with political correctness as the complaint of the otherside. Its not students who need to grow up but the rest of us.

  2. I’m sorry the students were upset or made uncomfortable by the Judge’s remarks, but they are in for a whole lot worse once they leave school. Clients, partners, opposing counsel and the bench are not known for having a kind and gentle manner. As the post mentions, a tough skin is a requirement. Our system is an adversarial process, so hurt feelings abound. Getting used to it in school is a necessary lesson, regrettable as that may be.

  3. repenting lawyer,

    I respectfully diagree. While those us who were law students from the 1960s legal education scene were insufferable, I don’t recall that we were whimps. Nor do I recall the law professors giving a shit about our feelings in contrast to the legal education scene now where law professors seem to be far more concerned with the feeling of their students. All the best.

    RGK

  4. Standard I graduated from law school and the world of lawyering is cruel story. Partly true partly a bed time story lawyers tell one another to justify their conduct. when they have confused adversarial system with a saloon brawl, though fist fights are now mostly the stuff of legend. Yes I have witnessed a couple of the legendary punching extravagance. Almost in one myself, pulled back, next day my target was appoint CJ of my home state’s supreme court.

  5. I would like to meet some of these caring law profs, none here with me at old profs home. Teaching your generation, not at NU, know Cornhuskers suffered more and did it in silence, but whimps there were in abundance. Had breakfast with two classmates yesterday, next years 50 year class. Now we had it tough, the older lawyers who trained us were harsh and cruel and we were better lawyers for it. By the way I recall my father and one of his classmates, a federal judge no less, telling me how hard they had had it and how easy and care free law school had become.

  6. If those students and Marc Bookman went to Creighton or Nebraska they wouldn’t be such cry babies.

    And in answer to Holder’s question: Blacks need to change their culture. It starts with drugs and extends through to their music. How does a culture go from Marvin Gaye to P. Diddy? Motown to rap?

  7. Which did you attend Cornhead and when? Nice to learn there is something in legal education at which CU Law and NU Law outrank Penn. Student insensitivity. Not surprised.

  8. Blacks need to change their culture? I think we whites need to change our culture first. We could begin by trying not to use stereotypes. Might surprise you to learn that most African-Americans do not use drugs and don’t countenance those who do. As for music, what is it about jazz that you don’t like?

  9. While I agree that the feelings of the affiants should not have been much of a consideration in the context of an ethics complaint, if the statements be Mr. Bookman, in particular, are accurate, there is at least a substantial probability that Judge Jones harbors feelings that should at least raise questions of her fitness to sit on cases in which one of the parties is African-American or Hispanic, or in which the death penalty is involved. (My comments are based on the assumption that what Mr. Bookman ascribed to the judge reflects what she actually said, but I emphasize that I have no knowledge of whether that is the case.)

    More troubling than the comments that the judge is said to have made about the number of crimes committed by black and Hispanic individuals is the allegation that she said “no case has ever been made for systemic racism.” Perhaps the context indicates that she limited the time period or jurisprudential arena that she was discussing, but based on the words alone, I suggest that the judge Google “Scottsboro Boys.” Race has permeated the justice system for our entire history, and it is still a substantial factor. That is part–but only a small part–of what the judge misses when she dismisses statistics showing substantial disparity in the imposition of the death penalty based on the race of the victim. And–although this is not something that I have studied–I suspect that decisions to charge capital crimes is racially disparate as well, which contributes importantly to the disproportionate number of black and Hispanic defendants who are sentenced to death. That the judge does not think in such terms–indeed, that she seems to reject the relevance of measures such as that, is disturbing.

    The comments that got the judge into the most trouble seem to have been that, “Sadly, some groups seem to commit more heinous crimes than others.” That has the same defects as the remarks that I noted above–it ignores the multiple levels at which discretion is subject to distortion through prejudice or stereotypes of particular racial and ethnic groups. While some offenses are more heinous than others, much of what we perceive about specific crimes is based on the decisions of prosecutors, judges and juries in how to assess the culpability of individual defendants. Racial or ethnic prejudice at any of those levels distorts the statistics on which the judge relies.

    But there is another issue here. The judge’s comments remind me of the case I read in law school, in which a district court judge told the jury something like the following, “You may have noticed that when the defendant testified, he kept rubbing his hands. I don’t know why it is, but I have observed that defendants who do that are almost always guilty.” Even in the 1920’s, that was enough for the court of appeals to reverse the conviction. I see the remark attributed to Judge Jones as being similar–“sadly,” blacks and Hispanics commit more crimes, and more heinous crimes. That sounds to me like the expression of a pre-disposition to view claims made by black and Hispanic defendants with more skepticism than she would for defendants of other ethnicities (or those in which she she did not know the ethnicity of the defendant). Similarly, her remarks about mental retardation (more properly known as intellectual disability) and claims of actual innocence lead me to question whether she can sit properly when such issues are raised. She may say that she is only expressing statistics, but as I have tried to illustrate, statistics are subject to picking and choosing. (“There are three kinds of lies,” the Duke of Wellington is said to have opined, “lies, damn lies and statistics.”)

    Now, it may be that the judge’s real sin was that she was honest, and that many or most of those on the bench hold similarly stereotyped views of individuals and issues on which they sit in judgment. If so, that is a problem that needs to be exposed and addressed.

    Finally (and if you are still reading, I can hear you exhale in relief), if i represented a black or Hispanic defendant, or one facing the death penalty, I would consider it malpractice should Judge Jones be assigned to the case panel if I refrained from seeking her recusal. That is a bad position for a lawyer to be in, but isn’t it worse for the federal judiciary that a judge is in that position?

  10. BINGO, Judge, Bingo! “Butthurt babies” – best descriptive term I’ve seen for awhile. Including myself, of course, we have become a society of whiners and complainers. Your previous phrase “get over it” applies nicely in many of life’s situations. Spend 8-12 weeks in an Army or Marine boot camp, serve for 2-3 years somewhere far from home, kids, and then come tell me how tough life is in “the Ivory Tower”. This old man has lost his patience with much of the nonsense that goes on these days for higher education – almost makes me want to retire and go “audit” some classes at a college or university and shake ’em up. You want political IN-correctness, kids?

  11. Judge:
    I would tell these young people: where is it written that one is allowed to go through life without being hurt or offended? The present culture would have one believe that any slight, now matter how small, is both objectionable and subject to redress. In fact, the opposite is probably what is best for future lawyers–or anyone else. It is the slights one experiences in life (and, more importantly, how one handles them) which develop character. But, in a politicly correct, superficial world, character has sadly taken a back seat to other things.
    Robert

  12. Judge on the basis of a quote from a blog not dealing with law school and two affs. only one of which is from a law student, we are gone from your condemnation of todays law profs to Robert’s condemnation of our entire culture, with Cornhead teaching AfroAmericans about culture. What a long stretch. Political correctness may have its faults but if this is its opponents standards of evidence, I am converted. Ups I hope I have not hurt anyone’s feelings.

  13. Dear repenting lawyer:
    As Yogi Berra once said, it’s deja vu all over again. Please let me know when you are prepared to address the central thesis of my comment, namely, that those seeking redress for having been made “uncomfortable” and/or “offended” by some of Judge Jones’ statements are reflective of the present day culture.
    Robert

  14. I am not silly enough to engage in answering an anonymous comment on national culture, I regard all such statements as more evidence of the maker’s psyche than comments on reality. I am prepared to agree that two people over reacted , and that you and the judge have used those two people to reinforce rather typical Big Red views of the world, though I do not know where you live. I .. have not seen that much change in American culture, but as you noted yesterday I need to get out more. I do think there may be a sad tendency on the part of those who think they speak for older and better times to react with self pity when others laugh at their views, but that is not true of all of them. Were more evidence than your mere assertion available a more detailed response might be appropriate .I do know there is no harm in asking, though I do recall that that line dates from the good old days when there were few women law students.

  15. Speak for yourself MOK I limite my complaints to the ravages of age , evidence of cultural change brought about by increased longevity if I am typical. If I am then the fellow who invented the phrase golden years should be voted off the island.

  16. Dear repenting lawyer:
    My psyche, as with my residence, are of no moment. I attempted to induce and identify, from the sense of the statements cited, the cultural mindset which suggests that being “hurt” or “offended” by mere comments entitles one to redress. You concede that these people “overreacted.” Yet, no such explanation was extended to the culture at large which, impliedly, fostered these comments. Therein lay the problem: the issue is not the speaker or the reactions thereto, it is, instead, the culture and the way it has (quickly) devolved over the course several decades. Not such a long time ago people were offended but got on with their lives. If they took offense they did so without resort to ethics complaints, or the like, and were the better for it. Self-involvement was not a national pastime. Not so today.
    Robert

  17. There is no point in theses debates about pop right wing social theory, since all you show is what you believe. I am sure you and your chums congratulate one another on your wisdom, while the folks are the next table who disagree are congratulating one another that they are not you..As for me anyone who diagnosis the state of an entire society from a couple of statements could only be a law school graduate. I know of nothing in legal education or the practice of law that would equip you to make such sweeping statements. Perhaps you are equipped by training and experience to do so but your credentials are not on display in your comments. The common currency of talk radio and Fox News is not the usual proof of wisdom.

  18. Jon,

    You have pointed out a fair concern. When a judge speaks or writes on a controversial subject, outside the confines of the courtroom or a written opinion, the judge risks causing litigants to fear the judge will not be impartial. Judge Jones’ talk on the death penalty is a good example. On this we agree.

    Now, what is the alternative? The judge can decide never to give talks or write extrajudicial pieces. Or the judge can decide never to speak or write on subjects that might be considered controversial. It is my opinion these options do more harm than good, and we should want judges to speak out on controversial subjects, albeit carefully.There is serious risk, but the upside–transparency–is worth it. In short,we have more than enough federal judges to handle an occasional recusal, but too few federal judges endeavoring to make the judiciary transparent.

    Thanks for your thoughtful comment. All the best.

    RGK

  19. Dear repenting lawyer:
    Not surprisingly, you have failed to show how my “diagnosis of the state of an entire society” from this event is, in any way, incorrect. Further, the use of invective and personal attacks only underscores your inability to respond appropriately.
    Robert

  20. Never said most Blacks use drugs. But as a percentage, too many do. Check out the stats.

    Love jazz. Hate rap and that gangster music. Not even music. Check out the rap lyrics. Not exactly about love like most of Motown was.

  21. Robert you have gotten above yourself. I have no idea how to prove or refute the type of broad propositions you assert. I strongly suspect no one knows how to do so, which is why they produce endless talk. I fail to see invective or personal attack in my remarks. I simply pointed out that with no real. evidence you produced the common talk of people who share your political persuasion and that I did not see any special competence you have which would give credit to your statement. Had I wanted to be offensive I would have said you are suffering from a bad case of ego inflation which causes you to think that reality owes you the duty to conform to your thinking, magical thinking. However had I said that I might have gone the boundaries of what super tough lawyers deal with.

  22. In my view the legal profession and judges in particular need to accept their share of the blame for the situation. We have a robust 1A that is designed to protect the right of the speaker but has morphed into protecting the right of listener. I’m no fan of Edith Jones but I’m even less of a fan of those who would silence speech because it affronts the “human dignity” of the listener.

    To those who claim that it is supporters of the 1A and not the sensitive that need to grow up I have one thing to say: If your position is so inherently correct that it can sweep away all opposition you should have no problem convincing the public and the states to amend the Constitution. So stop taking the easy way out. Engage in the hard work of democracy rather than the easy work of noblesse oblige from an oligarchy of judges.

  23. Pingback: Being Offensive and Getting Offended: The Edith Jones Saga | Simple Justice

  24. RGK,
    I respectfully agree. Having worked in capital litigation for a summer, I can say that death penalty cases are no place for misplaced sensitivity. It is a brutal, “unfair”* practice, often filled with acrimony. Each side feels alienated, without friends in the world. I don’t know if you watch Dirty Jobs, but death penalty work definitely qualifies as one in my book. It is spiritually a dirty job.

    The sensitive ones in law school make me nervous. We all know who they are; they’re the ones that constantly espouse a particular position during class and are shocked that anyone might disagree with them. Such people are dangerous because they aren’t capable of seeing the other side of an issue, and are more likely to adopt “scorched earth” policies when it comes to litigation because they believe their side is 100% right and the other side is 100% wrong.

    I hate dealing with people like that. They make work difficult, and they do their clients a disservice by taking such a vicious attitude. I have never met a judge who appreciates a lawyer who litigates like an asshole.

  25. repenting lawyer,

    No hurt feelings here. As I suspect you understand better than most, age teaches one not to wear your feelings on your sleeves. Practing or teaching law reinforces that truism nearly every day.

    Thanks for writing. All the best.

    RGK

  26. The asterisk above refers to the fact that PCR and habeas in particular are set up with unfair standards. This is on purpose, since the defendant has received multiple opportunities to appeal before. PCR and habeas have a different function than direct appeals: their purpose is to ensure that the state court didn’t railroad the defendant, not right all wrongs.

  27. SLS,

    You hit on the one point that is most important. A lawyer cannot be fully effective while caring more about the crusade than the client. I can’t tell you how many times in the practice I was personally pissed off at the treatment I received from a judge or an opposing lawyer. Ed, my partner, frequently reminded me that “it is not about you.” When a lawyer is “personally offended” there is a tendency to do things that are not in the best interests of the client. The time I came close to a fist fight in the courtroom right after a long day of trial is a good example. Had I been thrown off the case for busting the asshole in the jaw, a truly delicious thought at the time, I would have seriously harmed my client.

    Thanks for writing. All the best.

    RGK

  28. Judge, I’m more concerned with that Judge Jones is reported to have said than the fact that she said it. Indeed, within limits I agree that it is good for judges to speak on issues so that we have an idea of their values and thought processes beyond the strict language of decisions.

    But if the reports of Judge Jones’ comments are accurate (and again I emphasize that what she said is what matters, not what she is reported to have said), she revealed herself to be of a narrow, rigid and very likely prejudiced mind. That’s not what I want in a judge, and I don’t think it’s what society wants in a judge. While we cannot expect judges to be Solomonic at all times (or perhaps even most of the time), part of the job description should include being endlessly curious and open to being persuaded even on issues that have been thought decided. There are no final decisions–see Dred Scott, Plessy v. Ferguson and Korematsu. I don’t ask that judges be endlessly malleable, or to give up their values, but I do want them to be willing to test their conclusions and even their premises. Judge Jones sounds very unlikely to do that.

  29. Actually, the percentage of whites (whatever “white” means) that use drugs is as high as the percentage of African Americans. May even be higher.

    And as for rap–what do you do about white (and Hispanic, and Asian) rappers?

    What you’ve done is to engage in stereotyping, which is wrong, but also lazy.

  30. My first thought: “WTF???” Surely, this was not what Congress had in mind when they enacted the Judicial Conduct and Disability Act.

    The intent of Congress was to find ways to chastise judges who abused their offices. As Judge Kozinski writes, “Judges abuse the power of the judicial office when they abbreviate or change critical aspects of the adversary process in ways that run counter to the scheme established by relevant constitutional and statutory law.” (425 F. 3d 1179, 1183-84; citation omitted). Those are wrongful acts with real consequences, and should be disciplined severely. But this???

    The Act was not to be used as a weapon in the culture wars.

    Of course, the statements should be widely disseminated, and Jones may be unfit to sit in certain classes of appeal. But how can anyone file an appropriate challenge if your appeal is decided by a nameless and faceless law clerk, and all the judges do in deciding your appeal is vote?

  31. Jon,

    On this you and I agree. Judge Jones does seem to be rigid. In this sense, she is much like Justice Scalia. Now, to be fair to Judge Jones and Justice Scalia, I have always preferred skepticism to theory. So, I have my own distinct bias. That admitted, since Einstein failed in his attempt to create a unified field theory to describe all the forces of nature and to demystify the quantum world, I doubt that very bright jurists like Jones and Scalia can accomplish that task in law. In other words, the great skeptic, Holmes was right.

    In short, the only thing I am certain about is that I am uncertain. That Judges like Jones and Scalia speak or write with certitude makes me envious that they are so comfortable doing so, but my gut tells me they are deluding themselves. None of this, however, justifies the savage attacks on Judge Jones and Justice Scalia.

    All the best.

    RGK

  32. RGK,
    A wise man wrote that “evil starts when you treat people as things.” I think that applies when you treat people as less important than ideas.

    The tricky part is figuring out what exactly that is.
    -SLS

  33. Years ago and in another lifetime I worked as a probation / parole officer in a rural part of a rural state. Prosecutors had the run of the court, as the PDs (very few could afford an attorney) were overworked and, frankly not that bright.

    One day a new public defender sauntered into court. A recent product of Yale Law, he was brilliant, dressed strangely (a tux one day, overall and suspenders the next) and was always prepared (apparently lived the law and slept 5 hours on a good night.) Plus he was a very good actor, could cite streams of cases from memory, and was sincere and charming. His behavior fascinated and entertained everyone, especially the district judges (to say nothing of the female clerks). He was known to shed tears at summation. Every Pros hated him, especially the police pros. His acquittal rate was unheard of and his plea bargains generous to defendants.

    Years later, after I had moved out of state, I ran into him at a conference. I was somewhat surprised to discover that he had become a prosecutor. Same MO. Exceptional convict rate and strict bargains.

    With him I discovered the law as theater. A neat revelation that has stood me in good stead ever since.

  34. The interesting thing–Justice Sotomayor explicitly linked the quality of judging with ethnicity. Liberals decided that was ok, and to even raise the point supposedly qualifies one as a racist.

    The best defense of Sotomayor is that she really didn’t intend to say what she clearly said. Although I am not inclined to believe that, Justice Sotomayor isn’t exactly the most articulate person on the planet. Witness, for example her discussion of term limits in response to a question by Senator Kohl (D-Wis.). That discussion has a Bidenesque quality about it.

  35. mswales,

    Interesting observation. I have seen two or three lawyers who also were actors in local productions. They were pretty good in the courtroom, but not great. Their focus in the courtroom was on their performance. Juries sensed that and while appreciative of the acting skills, the trial results were similar to other moderatly capable lawyers who had no acting training.

    All the best.

    RGK

  36. My observation was, if a litigator has an outsize ability to perform (in the best sense of prepare creatively, memorize selectively, and act with sincerity) doesn’t that give a jury caught up in the courtroom drama an excuse to suspend disbelief? That a great actor can cast himself as defender one day and prosecutor the next, with equal conviction shall we say, is impressive.

  37. As we used to say when I was in the theatre, that’s why they call it acting.

    I tend to agree with the judge that an attorney who is merely acting is likely to be less convincing than one who is sincere, if less polished. But as advocates, we should be able to argue either side of an issue. Indeed, on the rare occasion in which I find myself representing a defendant rather than a plaintiff, it scares me how easily I slip into the raiment of the other side.

  38. Robert I disagreed with the Judge on legal education, though there may have been a sea change in the last year or so since I stopped teaching. Neither agree or disagree with what you said. I questioned the evidence that supported what you said. When pressed I decide to show that mean law professors are still extant. Probably not the best idea.

  39. In calling yourself the thing itself from which thing are you distinguishing yourself? Halloween is coming and you might be confused with other things. Remember the wise words of Lord Shaw, “if it had not been in Latin no one would have thought it was a rule.”

  40. The devil is in the details. One witness (self-described as African-American) reported that initially, Judge Jones said Hispanics and African-Americans are “prone” to crime. When s/he asked Judge Jones to clarify, the judge said she meant that there are more Hispanics and African-Americans committing crimes. The two statements are very different. I appreciate that Judge Jones walked back her statement a bit, but it also appears that she attempted to cover her tracks a bit. That may not amount to a violation of judicial ethics, but it does suggest a bias on her part.

    If this were some other judge, this might just be a blip in her career. But, she has crafted her career with strong opinions.

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