Monday night, Iowa Republicans selected Sen. Ted Cruz (R-TX) as their favored candidate to be their party’s nominee for the presidency, thereby casting their lot with a candidate best known for his efforts to implement Republican proposals through outright extortion. A former Supreme Court litigator, Cruz has made the high Court a centerpiece of his campaign. Indeed, he lays much of the blame for recent conservative defeats at the feet of Republican presidents who appointed less-than-pure conservatives to the Court.
“Let me tell you the difference of that. If instead of David Souter and John Roberts, the Presidents Bush had nominated Edith Jones and Mike Luttig,” Cruz told a conservative audience last September. “Obamacare would have been struck down three years ago, and the marriage laws of every state would still be on the books.”
Michael Luttig was an arch-conservative judge who Cruz clerked for shortly after law school. Luttig resigned from the bench to become Boeing’s general counsel after President George W. Bush passed him over for the Supreme Court seats that went to Chief Justice John Roberts and Justice Samuel Alito. Edith Jones, meanwhile, remains a judge on the United States Court of Appeals for the Fifth Circuit, where she practices a punishing style of conservatism.
The words “sexual harassment” hardly capture what happened to Susan Waltman during her time working for International Paper Company, although that’s why her lawyers found themselves in the Fifth Circuit arguing before a panel that included Judge Jones. According to the majority opinion in Waltman’s case, the harassment began just weeks after she began work in one of International Paper’s mills. One co-worker “broadcast obscenities directed toward Waltman over the public address system,” while others made suggestive comments to her in person. After Waltman complained, and was moved to another shift, her supervisor “urged Waltman to have sex with a co-worker.” He “pinched her buttocks with pliers and tried to put his hands in her back pockets,” and made comments to her like “I would like a piece of that.”
Waltman “received over thirty pornographic notes in her locker.” Sexually explicit graffiti lined the walls of her workplace, some of which was explicitly directed at her. Workers hung used tampons from their lockers, and her co-workers repeatedly asked Waltman for sex. Yet, when she complained again, Waltman’s manager told her that “she should expect this type of behavior working with men.” Eventually, she was transferred to another shift. No one was disciplined for their actions.
Nor did the harassment end there. A contractor working in the mill grabbed Waltman’s arms while another stuck his tongue in her ear. A co-worker told her that “he would cut off her breast and shove it down her throat.” Later, the same co-worker “dangled Waltman over a stairwell, more than thirty feet from the floor.” Others pinched her breasts and grabbed her thighs.
After nearly three years of this treatment, Waltman complained to senior management. She says that the managers “intimated that if Waltman pursued an investigation it would hurt her chances of a promotion and make it impossible for her to work at the mill,” and International Paper took no disciplinary action against its male employees. Eventually, she quit after a co-worker “grabbed Waltman’s breasts and directed a high pressure hose at her crotch.”
Two judges backed Waltman in her lawsuit against International Paper and ordered a full trial on the merits. Jones dissented in an opinion that appears far more concerned with the burdens sexual harassment plaintiffs could impose on business than the fate of women like Waltman. Sounding very much like the manager who told Waltman that she should expect harassing behavior from men, Jones wrote that “we have so little social consensus in sexual mores nowadays that, short of incidents involving unwanted physical contact, it is impossible generally to categorize unacceptable sexual etiquette.” The judge added that “it is likewise impossible to eradicate sexual conduct from the workplace — without unthinkable intrusiveness,” and thus the law should only concern itself with the most “severe, pervasive and abusive conduct and results.”
Judge Jones is right that the Supreme Court only permits sexual harassment plaintiffs to prevail when the harassment is “so ‘severe or pervasive’ as ‘to alter the conditions of the victim’s employment and create an abusive working environment,'” but her opinion seems to go out of its way to excuse the treatment Waltman faced at her job. “Most of” the sexual graffiti that lined her workplace’s walls “did not involve [Waltman] or the female anatomy,” Jones wrote, adding that “only one man was involved in more than one physical incident,” and these incidents were “spaced well apart chronologically.” Jones also emphasized that, when Waltman complained, she was assigned to different shifts.
The thrust of Jones’ opinion, however, is that International Paper should not be liable for the harassment Waltman experienced because the company “did not have actual or constructive notice that Waltman was subjected to a pervasively abusive and hostile work environment, and because I believe IPCO responded promptly to each complaint that she made.” This is a simply extraordinary statement. Waltman complained repeatedly to her supervisors, including once to the company’s senior management. And those managers failed to discipline a worker who literally threatened to cut off Waltman’s breasts and a supervisor who grabbed her butt with a pair of pliers. One wonders if any sexual harassment plaintiff could prevail under the standard laid down by Judge Edith Jones.
Nor is Jones’ Waltman dissent an isolated incident. In a 2001 speech to Texas law students, Jones advised workers who believe they are victims of discrimination to “take a better second job instead of bringing suit,” claiming that workplace discrimination lawsuits are often brought “for purposes of revenge.” She joined an opinion claiming that a man should be executed despite the fact that his lawyer slept through much of his trial. And Judge Jones has also suggested that the government should be allowed to treat citizens in the same way a parent might treat a 4 year-old with a potty mouth. At one point, she accused the Supreme Court of “overstepping its bounds” in “pornography cases” and “the cases involving free speech that included those where people were allowed to spout the ‘F’ word in public venues.”
And this is the woman that Ted Cruz would have chosen for the Supreme Court.
When the next president takes office, the fourth oldest member of the Court will be 78-years-old. That means that a President Cruz could appoint as many as four Edith Joneses to the nation’s highest Court.