Judging the Judgment of Judges Jones

Recently, two judges named Jones have waded into murky waters, and created some questions about a murky process.

U.S. District Judge Robert Clive Jones caused controversy with a pair of rulings. In one, he upheld the amendment to Nevada’s constitution that defines marriage as “between a man and woman.” Granting that he seems to be invoking William F. Buckley’s professed desire to be “standing athwart history, yelling stop,” Jones argued that marriage exists for the purpose of procreation, which might make childless couples wonder why he has no use for them. On top of that, the Ninth Circuit Court of Appeals rebuked Jones for his ruling on whether Nevada could retain “None of the Above” on election ballots. Jones held the provision unconstitutional, but his “dilatory tactics”—delays in holding hearings and issuing opinions—delayed the opportunity for appeal. Interestingly, Republicans were behind the challenge to “None of the Above” in hopes of helping the presidential candidacy of Mitt Romney—who, it so happens, was Jones’s classmate at Brigham Young University.

Clark County Family Court Judge Steve Jones and five others were indicted by a federal grand jury, charged with conspiracy to commit mail fraud and wire fraud, money laundering and securities fraud in connection with an investment scheme. Jones already had attracted attention for his role in a couple of domestic violence cases (once as a victim) and dating a prosecutor who appeared in his court.

None of this is to compare one Jones’s debatable (distasteful might be a better word) rulings with the other Jones’s alleged fraud and personal issues. But both cases point up issues related to the judicial system that merit some thought on everybody’s part.

Clive Jones comes from a longtime, respected family: his father had been district attorney, and he served for many years as a bankruptcy judge before shifting to district court. As federal offices, bankruptcy and district court are appointive. Unlike Steve Jones, he never had to face an electorate—an electorate that elected to four terms the family court judge now under indictment.

A federal district court judge, be it Jones or any other, often is leery of setting precedent. They usually leave that sort of thing to the appellate courts, especially the nine Supreme Court justices in Washington, D.C. Still, Jones professed respect for the electorate: Nevadans approved the amendment to their constitution, after all. What makes that odd is, in taking a position most frequently articulated by Republicans, Jones, a Republican appointee, took the position that northern Democrats took before the Civil War: people should vote on basic rights, like whether to own slaves. The first Republican president, Abraham Lincoln—you may have heard that he recently portrayed Daniel Day-Lewis in a movie—and his party argued against that. History is an odd duck.

That electorate also chose the indicted Judge Jones, and thus we are sure to hear further debate about the best method of choosing judges. Electing them, as Nevada does at the state, county, and municipal levels, opens them up to the need to campaign, to raise money, often from lawyer who will appear before them. There have been efforts to turn to the Missouri Plan, which allows for the appointment of judges, and then an up or down vote by the electorate.

Yet the appointive process also produced federal judges like Clive Jones and others who make decisions that some find dubious—and others welcome. If he faced a yes-or-no vote from the electorate, you can bet all of Sheldon Adelson’s money that there would be groups promoting his decision on same-sex marriage and others lambasting it.

What the two Joneses prove is the wisdom of what Winston Churchill said: that democracy is the worst form of government, except for the others.