Misconduct Complaint Alleges 5th Circuit Judge Issued Partisan Attacks on Colleagues

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U.S. Court of Appeals for the Fifth Circuit
U.S. Court of Appeals for the Fifth Circuit

U.S. Court of Appeals for the Fifth Circuit. Photo by Michael A. Scarcella/ALM

Austin civil rights attorney Jim Harrington has claimed in a new judicial misconduct complaint that Senior Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit made inappropriately partisan and disrespectful attacks on other federal judges in a dissenting opinion.

The April 9 complaint noted the underlying case, Thomas v. Bryant, concerned the 2018 Voting Rights Act and alleged gerrymandering of boundaries of a Mississippi senate district that diluted African-Americans’ voting strength. Harrington isn't a party or lawyer in the case.

Edith Brown Clement
Edith Brown Clement

Senior Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit.

“Judge Clement’s statements demonstrated a lack of respect for her fellow federal judges, a lack of judicial temperament, and a failure to maintain and observe the high standards of conduct required of federal judges,” Harrington alleged in his complaint. He claimed her comments violated federal law and the code of conduct for federal judges.

Clement didn’t immediately return a call seeking comment.

The complaint explained that in the underlying case, U.S. District Judge Carlton W. Reeves held a bench trial in February 2018 and concluded the plaintiff established there was vote dilution that violated the law. The judge delayed ordering a remedy to allow the state’s Legislature to redraw district lines, but when the Legislature couldn’t make changes before the candidate-filing deadline, Reeves in a final judgment ordered the adoption of a Senate district map crafted by the plaintiff’s experts.

The defendants appealed, asking for a stay of Reeves’ judgment. The Fifth Circuit’s majority opinion by Judge Gregg Costa, joined by Judge James L. Dennis, found the defendants failed to show it was highly likely to overturn Reeves’ finding that there had been a voting rights violation. But they did find the defendants satisfied factors for them to issue a stay, to give time for the Mississippi Legislature to redraw the Senate district’s boundaries. The Fifth Circuit’s stay on April 3 permitted lawmakers to redraw the lines and extended the candidate filing deadline to April 12.

Clement’s dissent was vitriolic, according to Harrington’s complaint.

“She criticized the majority’s decision not to grant a complete stay to prevent the adoption of the new district boundaries before the upcoming election. She also highly disapproved of the district court’s adopted redrawn district boundaries, because those new boundaries resulted in the re-districting of two Republican candidates,” Clement wrote, according to the complaint. This left just one candidate—the plaintiff—for the seat.

Austin civil rights solo Jim Harrington. Photo: Angela Morris/ALM.

Harrington explained in his misconduct complaint that it doesn’t concern the merits of the dissent, but rather the partisan, insulting, egregious and unnecessary comments aimed at other judges. The alleged inappropriate comments said the defendants had bad luck drawing a “majority-minority panel,” that Reeves had issued an order that was tailored to win an election for one candidate, and that if the Fifth Circuit didn’t act, it would have decided the November election for the Senate district in question, which would be uncommon for a federal district judge to decide a race.

“The false statements falsely, harshly, and disrespectfully assumed that Judges Costa and Dennis decided the case not on the merits, but on partisan considerations, simply because they were appointed by Democratic presidents,” alleged the complaint. “Judge Clement’s misconduct is serious. It serves to undermine the public respect for the federal judiciary that is critically important for the continued success of our judicial system.”

Read the judicial misconduct complaint here.

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