The New York Times launched a blog today whose inaugural substantive post called for the defeat of the nomination of Judge Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit.
In examining his record, the Times asked "whether he is sufficiently sensitive to civil rights issues to sit on a federal appeals court, especially one in a part of the country that has one of the highest concentrations of African-Americans, and many racially charged cases involving issues like the death penalty." The answer, according to the Times, is "no."
He is strongly pro-business, and generally rules against employees. But he found an employee to rule for when a white Mississippi social worker was fired for calling a black colleague “a good ole nigger.” He accepted the white worker’s claim that her use of the slur was “not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.”
Judge Southwick also joined another decision taking a child away from a mother because she was bisexual. Adding insult to injury in that case, he signed a concurring opinion that attacked the mother for her “decision to participate in a homosexual relationship” and told her that losing her baby was one of the possible consequences of her “exertion of her perceived right.”
Judge Southwick's vote in the Richmond case was unremarkable, and attacks on him based on it are just demagoguery.
In that case, the Mississippi courts held that, unpleasant though an employee’s one-time use of the N-word was, the Mississippi Employee Appeals Board did not violate state law when it reinstated that employee, who had been fired for using the N-word (the Mississippi Supreme Court ultimately indicated the employee should have been given a lesser penalty than being fired).
This wasn’t a “right-wing” or “racist” decision, but rather was seen at the time as a pro-public-employee decision; and both Democratic and Republican judges concurred in that result.
The decision applied state personnel law, which limits state officials’ ability to discharge public employees, does not provide for employment at will, and makes it hard to remove public employees absent egregious misconduct. Thus, the decision boiled down to whether the employee’s one time use of the N-word rose to the level of illegal racial harassment sufficient to justify her discharge.
And the U.S. Supreme Court stated very clearly in the Meritor Savings Bank v. Vinson decision in 1986 that a single use of racial epithet, not repeated, does not rise to the level of illegal racial harassment. Other cases like Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994) and Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998) make this clear in rejecting racial harassment lawsuits based on just one or two uses of the N-Word.
The Mississippi Supreme Court just recognized that legal reality in applying well-accepted legal definitions of racial harassment.
The fact that the Richmond decision was viewed as a pro-public-employee decision is illustrated by the fact that when the case ultimately reached the Mississippi Supreme Court, all the justices who dissented and would have upheld the initial decision to fire the employee were, ironically enough, conservative Republican justices, who tend to be more skeptical about limits on employment-at-will, and believe that government efficiency is promoted by allowing employees to be fired for less than egregious misconduct. By contrast, the court majority upholding the employee’s reinstatement were largely Democrats.
To be sure, there were some Republican judges who joined in reinstating the employee — like Judge Southwick, who did so while on the Mississippi Court of Appeals. But they tended to be the moderate Republicans, who like Democratic justices are less philosophically committed to the principle of employment at will.
But ironically enough, that was the exception rather than the rule. There were actually more Democratic judges ruling in favor of the employee than Republicans.
So it is very misleading to suggest that joining in the ruling makes Southwick “right-wing.”
Truth be told, if he were right-wing, he probably would have voted the other way.
By Mississippi standards, Southwick is moderate. The Administration probably thought it was extending an olive branch to centrist Senators by nominating him rather than a more conservative judge.
You may not like the case law establishing that one use of the N-word doesn't violate the laws against racial harassment. But that doesn't change the existence of that case law. See, e.g., Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding that allegations that plaintiff's co-worker once called the plaintiff "nigger" was insufficiently severe to establish a hostile work environment), aff'd, 58 F.3d 640 (11th Cir. 1995).
Judge Southwick's vote in the Richmond case was unremarkable, and attacks on him based on it are just demagoguery.
In that case, the Mississippi courts held that, unpleasant though an employee’s one-time use of the N-word was, the Mississippi Employee Appeals Board did not violate state law when it reinstated that employee, who had been fired for using the N-word (the Mississippi Supreme Court ultimately indicated the employee should have been given a lesser penalty than being fired).
This wasn’t a “right-wing” or “racist” decision, but rather was seen at the time as a pro-public-employee decision; and both Democratic and Republican judges concurred in that result.
The decision applied state personnel law, which limits state officials’ ability to discharge public employees, does not provide for employment at will, and makes it hard to remove public employees absent egregious misconduct. Thus, the decision boiled down to whether the employee’s one time use of the N-word rose to the level of illegal racial harassment sufficient to justify her discharge.
And the U.S. Supreme Court stated very clearly in the Meritor Savings Bank v. Vinson decision in 1986 that a single use of racial epithet, not repeated, does not rise to the level of illegal racial harassment. Other cases like Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994) and Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998) make this clear in rejecting racial harassment lawsuits based on just one or two uses of the N-Word.
The Mississippi Supreme Court just recognized that legal reality in applying well-accepted legal definitions of racial harassment.
The fact that the Richmond decision was viewed as a pro-public-employee decision is illustrated by the fact that when the case ultimately reached the Mississippi Supreme Court, all the justices who dissented and would have upheld the initial decision to fire the employee were, ironically enough, conservative Republican justices, who tend to be more skeptical about limits on employment-at-will, and believe that government efficiency is promoted by allowing employees to be fired for less than egregious misconduct. By contrast, the court majority upholding the employee’s reinstatement were largely Democrats.
To be sure, there were some Republican judges who joined in reinstating the employee — like Judge Southwick, who did so while on the Mississippi Court of Appeals. But they tended to be the moderate Republicans, who like Democratic justices are less philosophically committed to the principle of employment at will.
But ironically enough, that was the exception rather than the rule. There were actually more Democratic judges ruling in favor of the employee than Republicans.
So it is very misleading to suggest that joining in the ruling makes Southwick “right-wing.”
Truth be told, if he were right-wing, he probably would have voted the other way.
By Mississippi standards, Southwick is moderate. The Administration probably thought it was extending an olive branch to centrist Senators by nominating him rather than a more conservative judge.
You may not like the case law establishing that one use of the N-word doesn't violate the laws against racial harassment. But that doesn't change the existence of that case law. See, e.g., Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding that allegations that plaintiff's co-worker once called the plaintiff "nigger" was insufficiently severe to establish a hostile work environment), aff'd, 58 F.3d 640 (11th Cir. 1995).