JUDGE EDITH H. JONES Tells Harvard Law School: "American Legal System Is Corrupt Beyond Recognition"

Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit talks to members of Harvard Law School's Fed-eralist Society. Jones said that the question of what is mor-ally right is routinely sacrificed to what is politically expedient.

The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28.

She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. "The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie 'Chicago' with Richard Gere the other day. That's the way the public thinks about lawyers," she told the students.

"The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature . dictated by God himself . is binding . in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority . from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation," said Jones.

She said that the business about all of the Founding Fathers being deists is "just wrong," or "way overblown." She says they believed in "faith and reason," and this did not lead to intolerance. "This is not a prescription for intolerance or narrow sectarianism," she continued, "for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.

"The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist when your own people are being killed."

According to the judge, the first contemporary threat to the rule of law comes from within the legal system itself.

Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, "described lawyers as a natural aristocracy in America," Jones told the students. "The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart from the passions of the majority.

Lawyers were respected by the citizens and able to guide them and moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the majority. "Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is hard for us to do so.

"The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients' goal through deft manipulation of the law. While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law,"

The judge quoted Kenneth Starr as saying, "It is decidedly unchristian to win at any cost," and added that most lawyers agree with him. However, "An increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence," she claimed. "When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?"

Another pernicious development within the legal system is the misuse of lawsuits, according to her. "We see lawsuits wielded as weapons of revenge," she says. "Lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. . The lawsuit is not the best way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better ways to achieve social goals than by going into court."

Jones said that employment litigation is a particularly fertile field for this kind of abuse. "Seldom are employment discrimination suits in our court supported by direct evidence of race or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous discrimination suits are filed . creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions. "While the historical purpose of the common law was to compensate for individual injuries, this new litigation instead purports to achieve redistributive social justice.

Scratch the surface of the attorneys' self-serving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves 'agents of change.'"Jones wonders, "What social goal is achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates."

The judge quoted George Washington who asked in his Farewell Address, "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in courts of justice?" Similarly, asked Jones, how can a system founded on law survive if the administrators of the law daily display their contempt for it?

"Lawyers' private morality has definite public consequences," she said. "Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable." The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself.

"Agencies have an inherent tendency to expand their mandate," says Jones. "At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse."

Jones recommends three books by Philip Howard: The Death of Common Sense, The Collapse of the Common Good and The Lost Art of Drawing the Line, which further delineate this problem. The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy.

"Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions," said Jones. "Each of these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,' the moral foundation or direction of law." Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s that "the ordinary religion of the law school classroom" is "a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry."

The judge said ruefully, "There has been no Great Awakening in the law school classroom since those words were written." She maintained that now it is even worse because faith and democratic processes are breaking down."The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: "The whole of modern thought . has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of our purely mechanistic understanding of the universe."

Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: "The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. . The historical soil of the Western legal tradition is being washed away . and the tradition itself is threatened with collapse."

Judge Jones concluded with another thought from George Washington: "Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens."

Upon taking questions from students, Judge Jones recommended Michael Novak's book, On Two Wings: Humble Faith and Common Sense. "Natural law is not a prescriptive way to solve problems," Jones said. "It is a way to look at life starting with the Ten Commandments."

Natural law provides "a framework for government that permits human freedom," Jones said. "If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - 'from each according to his ability, to each according to his need?' I don't even remember it, thank the Lord," she said to the amusement of the students. "I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time," Jones said, although she did concede that there were other ways to accommodate the rule of law, such as constitutional monarchy.

"Our legal system is way out of kilter," she said. "The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything."

Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the Bush administration, but does not relish the idea. "Have you looked at what people have to go through who are nominated for federal appointments? They have to answer questions like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?' "In those circumstances, who is going to go out to be a federal judge?"

Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in 1985. Her office is in the U.S. Courthouse in Houston.

The Federalist Society was founded in 1982 when a group of law students from Harvard, Stanford, the University of Chicago and Yale organized a symposium on federalism at Yale Law School. These students were unhappy with the academic climate on their campuses for some of the reasons outlined by Judge Jones. The Federalist Society was created to be a forum for a wider range of legal viewpoints than they were hearing in the course of their studies.

From the four schools mentioned above, the Society has grown to include over 150 law school chapters. The Harvard chapter, with over 250 members, is one of the nation's largest and most active. They seek to contribute to civilized dialogue at the Law School by providing a libertarian and conservative voice on campus and by sponsoring speeches and debates on a wide range of legal and policy issues.

The Federalist Society consists of libertarians and conservatives interested in the current state of the legal profession. It is founded on three principles: 1) the state exists to preserve freedom, 2) the separation of governmental powers is central to our Constitution and 3) it is emphatically the province and duty of the judiciary to state what the law is, not what it should be.

"The judge quoted George Washington who asked in his Farewell Address, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in courts of justice?'"

Today, "oaths" are considered by many of the Liberal Left to be merely symbolic words, having little meaning except as "promises."

George Washington, in the quotation cited above, recognizes the Founders' view that oaths were much more than mere mortal promises. They were intended, in the "courts of justice," to signify what the Founders believed to be "obligations" before a Higher Authority, thus, trustworthy pledges.

Let John Quincy Adams explain it, as he did in New York City on the 50th Anniversary of the Inauguration of George Washington in his "Jubilee of the Constitution of the United States." Here are his words:

"To complete the organization of the government by the institution of the chief executive departments and the establishment of judicial courts, was among the first duties of Congress. The constitution had provided that all the public functionaries of the Union, not only of the general but of all the state governments, should be under oath or affirmation for its support. The homage of religious faith was thus superadded to all the obligations of temporal law, to give it strength; and this confirmation of an appeal to the responsibilities of a future omnipotent judge, was in exact conformity with the whole tenor of the Declaration of Independence. . . ."

In this hours-long Discourse, delivered at the request of the New York Historical Society, Adams recites the noble 50-year history of America under its Constitution, as well as the history of its philosophical underpinnings in the Declaration of Independence.

The question is: who understands better the philosophy, principles, and protections of the United States Constitution better, John Quincy Adams, or the ACLU and the Liberals of today?

Adams, the eldest son of John Adams, born in 1767, served as Minister to the Netherlands under President Washington, as minister to Prussia and to Russia, as Secretary of State, and as U. S. Senator. He was the Sixth President of the United States and from 1830 until his death in his seat in the Congress, he was a U. S. Congressman.

You're right. Judge Jones' opinion in Burdine will doom her, as well it should. I read that case, and it was WAY worse than it sounds.

The 5th Circuit sitting en banc reversed her, but the damage was done. She'll never be confirmed or I suspect even nominated.

It's too bad. I had followed Judge Jones for years and thought that she would be excellent for the Supreme Court, but Burdine and similar cases tell me that she believes that anything the government does in criminal case is OK, even perjury, false evidence, framing an innocent person. She just doesn't get the "innocent until proven guilty" or "due process" thing. That's disqualifies her from being a Supreme Court justice in my opinion.

I'd vote against her if I were a senator. And that's too bad. She could have been great, but her rabid pro-prosecution stance which even the 5th Circuit couldn't abide is unacceptable.

it's the defendant's fault if they hired a incompetent lawyer.

Not knowing anything about the case, there are a couple of points. First, this may have been an appointed public defender. Second, the error may not have mattered. The Court will have reviewed the testimony and the appellant will have to have argued that something in the transcript was improper and that an error at trial occurred because of it which would not have occurred if the lawyer had not been asleep at the swich. Third, those who see this as an outrargeous possibility miss the fact that a lot of judges allow a lot of irrelevant testimony to drag on and on and the only defense is to sleep through it.

Not quite as good as Janice Rogers Brown's:

Thank you for the link, and having read it I would disagree. I think Jones will prove the much more able jurist because I think she is much more grounded in the real world.

In fact, I find Brown a bit disturbing. Someone who tries to analyze our current predicaments by drawing a straight line from Procul Harem through the New Deal will end up falling off the tracks.

Perhaps the resulting ascendencey of liberilism and 50 year dominance of Democrats is the result of the New Deal, but the bury your head in the sand attitude of the Republicans in response to the credit collapse and the depression is more the cause of that then any measures to restore economic activity to a moribund economy.

One can just as well blame it all on credit cycles. Now a good conservative would argue that over-expansion of credit is a very very bad thing, but that is not the fault of having a public sector and big government. In fact, one of the reasons for the creation of central banks is that private banks were just as capable of expanding credit and creating subsequent collapses as is the public sector. The most recent financial system shocks have been the result of the expansion of credit through derivatives, which is almost entirely a private phenomenon.

I am, in fact, very concerned about conservatives who believe that large unaccountable private institutions are somehow less of a threat to individual liberties than are public institutions, this after Enron.

Well, you're correct that the Great Depression is significant in a number of important ways. I also think our public schools and society has created a number of myths about the great depression.

http://www.neoperspectives.com/greatdepression.htm

But as many modern economists are now suggesting, and contrary to popular belief, Roosevelt's higher government spending on his many new programs combined with higher taxes and shrinking of state power actually prolonged and deepened the Great Depression. A good illustration of FDR's role in this can be found in Jim Powell's book, "FDR's Folly" (1). Today we are stuck with many growth retarding programs like Medicaid, Social Security, and countless others that have far outlived their useful (hurtful) purpose. These programs have and continue to drain trillions from our GDP and have fostered corruption by the powers given to the many created regulatory agencies.

But, in their eagerness to blame Roosevelt, Conservatives today often forget that Republican President Herbert Hoover is credited with triggering the Great Depression by drastically reducing the money supply, ostensibly in order to prevent it. He also responded disastrously by passing the Revenue Act of 1932 which increased the top income tax rate from 25% to 63% with the aim being to restore business confidence by reducing the deficit. The results of this tax increase was an even greater deficit, plummeting tax revenues and a greater Depression (5). If President Hoover had more gradually and reasonably tightened the money supply and cut taxes when the depression first hit, the outcome might have been far different.

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So, I love that JRB attacks Roosevelt for what he is, the worst president ever in the history of the United Sates. But you're point about private and public similarities in overrextending credit etc.. is well taken and valid. But, if they are both the same, then why not just keep it private?

"I am, in fact, very concerned about conservatives who believe that large unaccountable private institutions are somehow less of a threat to individual liberties than are public institutions, this after Enron."

I think this is a criminal case, executives stealing from employees (by nulifiying their promised pensions/health benefits etc..) and should be prosecuted as such.

I often hear this argument, that private companies can become just as tyrannical as government. I believe this to be false. Private companies cannot make law. Private companies cannot throw you in jail if you do not comply with their laws. Government does this all the time, in order to, in effect, legally steal from us, or enabling private companies to do so. (some examples):
http://www.neoperspectives.com/rhetoric.htm

So, I believe Government will always be a greater threat than any private institution.

Janice Rogers Brown believes this, which is why I support her for the SCOTUS. Some more quotes by JRB:
http://www.neoperspectives.com/janicerogersbrown.htm

As you say in your quote on the new deal" Today we are stuck with many growth retarding programs like Medicaid, Social Security, and countless others that have far outlived their useful (hurtful) purpose.

That New Deal Programs and the liberals that begate them have long outlive their usefulness is a long valid criticism. The criticism that the new deal sustained the depression is a bit hard to defend. Everytime programs were cut back or not renewed unemployment went up and economic growth slowed again - which is why Roosevelt was able to continue to expand these programs despite prolonged criticism from the Republicans, from the Supreme Court and from members of his own party, including his own treasury secretary. Now you might make the argument that you cannot measure the situation by looking at small fluctuations and that the only possible program for success was for the government to stay out of it altogether.

The Republicans had plenty of time and opportunity to attempt to demonstrate that thesis and failed. Now maybe you could argue that they should have been given 20 years. That is a generation though and no one has the tolerance to stand high unemployment for a generation to prove a point. It is political suicide. It was for the Repubicans at the time.

Roosevelt won 4 terms and he is dead. Stop fighting that battle. The vital issue for the Republicans should be a positive program to do the best for the citizenry of the US now given the world situation as it is today.

Also from your citation, first I would note that the finding of "many modern economists" is not exactly a convinving statement, many and economists both being vague referents. Similarly the cite states Since the 1900s, excluding the Great Depression, 16 contractions in the economy have lasted an average of only 11 months

Well, the great depression was something different because it had already lasted may years before Roosevelt took office. It had already proven itself impervious to the normal efforts to expand credit which assumes that there is someone wanting to expand his business and will do so upon the supply of credit on acceptable terms. When no one is credit worthy and no one can put together a sound business plan for expansion because he has no potential customers, then you have a structural problem which requires a different kind of solution than the one the interest rate technocrats can provide.

So, I believe Government will always be a greater threat than any private institution.
Well, I don't. They both bear watching.
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I think you will find history supports me. Recall the British East India company, a private company that actually governed, created the laws for parts of india and did quite well. This isn't a good example because the private company WAS the government.

But what is the worst thing a private company ever did? Now, what is the worst thing government ever did? See the difference? In fact, private companies only become dangerous when they use and manipulate government. The less power government has the less 'influence' 'wealth' and 'power' it will have to market to private companies and 'do things' in their interest.

Agree with your criticism about 'many modern economists'.

But what the New Deal did was it stole, via taxes, money from productive businesses and gave it to the unemployed to create useless earthworks and money loosers like the TVA (Tennessee Valley Authority). This is bad economics. Creating entitlement programs, taking money from productive businesses that would be hiring and giving it to people for no reason is bad economics.

It had lasted 2-3 years before Roosevelt took office and you had Hoover raising taxes from 25-65% (or whatever it was)... which further deepened it. This is not often cited, which was why I think it is important.

To raise the top rate to 65% during peacetime? Especially right after the market crashed? This, more than anything, probably exacerbated the GD.

Roosevelt also launched massive farm subsidies during this period, yet people were starving. Stealing money from teh rich to raise teh price of grain for everyone.

I understand what your saying about the credit problem, but don't see how raising taxes and redistributing wealth and creating entitlement programs helps this.

Everytime programs were cut back or not renewed unemployment went up and economic growth slowed again - which is why Roosevelt was able to continue to expand these programs despite prolonged criticism from the Republicans, from the Supreme Court and from members of his own party, including his own treasury secretary.
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I'm not sure this argument can be backed up. It is difficult to determine what is causing what. Lagging/leading indicators etc...

I don't think these programs should ever have been started and think they prolonged teh Great Depression.

But I agree, it is better to focus on the future than on the past. I would like to read more on the great depression. FDR's folly, was very illustrative, but other POV are welcome.

And as far as the Republicans at the time of the GD... I think they blew it when they raised taxes and reacted 'liberally', so to speak, to the GD.

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