The Volokh Conspiracy

Apparently the witchcraft rumors must have been true.

More on Southwick is here:

Opposing Judge Southwick are number of civil and consumer rights groups, such as the Alliance for Justice. According to one of their reports, Judge Southwick “has an 89 percent record of voting against workers, consumers and other victims in divided decisions.” When questioned by Senators on this record, AFJ adds, “he could not find a single non-unanimous case, of the more than 7000 opinions that he wrote or joined, in which he voted in favor of a civil rights plaintiff or wrote a dissent on behalf of a plaintiff.” The AFJ report also argues that Judge Southwick demonstrated a bias against claims of discrimination towards African-Americans, while simultaneously favoring allegations of discrimination against whites. According to the report, "Judge Southwick . . . routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants."

In one case in particular, Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents. In another controversial decision, he joined a narrow majority in concluding a social worker was wrongfully terminated when she was fired for referring to an African-American co-worker by a racially charged term beginning with the letter "n."

Some advocates for Judge Southwick, such as the Committee for Justice, argue that Southwick’s troubles are the result of “Southern White Male Nominees Fac[ing] Bias in Senate.” They argue that opposition to Southwick is nothing more than "playing the race card.”

Let's be cynical for a moment. The Dems hold Congress and everyone expects them to take the White House in a year and a half. There are a number of issues that they can horse-trade for ease of nomination.

Why on earth should they be anything less than brutally hard-line? In 18 months they'll get to nominate their own guys, or they can trade some confirmations for the accomplishment of part of their political agenda. If even one Republican candidate wasn't being routed by even one top Democrat contender, compromise might be in order, but they have a remarkably strong hand.

The only reason not to push it is to not be assholes, and that's just not going to fly these days.

JB, the Democrats could defeat Southwick without lying about his record, insinuating he's racially insensitive, and basically showing themselves to be complete cads. Moreover, the current level of obstruction is completely unprecedented, and is detrimental to the judiciary (not to mention detrimental to the Senate's responsibilities under the Advice and Consent Clause).

Dave N

I'll have more to say below about the case involving the "good ole nigger" slur. Since it's so long, let me address your other points first.

First, the fact that Anderson, one of the more liberal commentators on this site...praised Judge Southwick yesterday and supported his confirmation is certainly interesting. Just like the fact that former Reagan DOJ lawyer Bruce Fein recently called for impeachment of George W. Bush and Dick Cheney. That is, it's one person's opinion and deserves some consideration, but it surely doesn't substitute for knowing the facts.

Second, I am puzzled by your statement of puzzlement by the suggestion that service on a state appellate court is not a credential for serving on a federal appellate court. Who suggested that? I didn't, and neither did the PFAW presser. I don't think either of the other comments before yours did, either.

Finally, I've now gone and read parts of the MSSC opinion as well as parts of the appellate decision that Southwick joined. I think that PFAW's accusation that Southwick referred to the term “good ole nigger” as only “somewhat derogatory” is a stretch, at best. That said, you are mistaken in your claim that "the Mississippi Supreme Court affirmed the Mississippi Court of Appeals".

Here's what actually happened. The "good ole nigger" phrase was actually uttered by a DHS employeed, Bonnie Richmond. After DHS terminated her, she appealed to the state Employee Appeals Board. Her appeal was first heard by a hearing officer, who stated, in the hearing:

I mean, I understand that the term "nigger" is somewhat derogatory, but the term has not been used in recent years in the conversation that it was used in my youth, and at that point -- at that time it was a derogatory remark. I think that in this context, I just don't find it was racial discrimination. I just don't find -- she possibly should have a letter of reprimand, but I don't think she needs to be terminated.

I'm going to reinstate her with back pay. The agency can do what they feel like they have got to do.

(I got these quotes from http://www.andrewhyman.com/confirmthem/nword.pdf.)

DHS appealed to the full EAB, which affirmed the hearing officer's reversal of DHS's termination of Richmond.

DHS appealed to the circuit court, which granted cert and set aside the EAB's reversal of DHS's termination.

Richmond then appealed the circuit court's ruling to the state appellate court, on which sat Southwick. At that point, in the decision that Southwick joined, the appellate court reversed the circuit court's ruling. That decision deplored the use of the word "nigger" but found that deference was owed the EAB's determination that the effect, in this case, wasn't bad enough to warrant termination:

the EAB decided that this one use of a racial epithet, when viewed in the context in which it was said, did not constitute sufficient basis to terminate an employee whose service, over a number of years, was shown to have been satisfactory in all other respects.

Thus the circuit court found that deference was owed the factual determinations of the EAB and there was no "authority for judicial intervention."

For what it's worth, the result was not just that Richmond's termination would be overruled, but also that she would face no penalty. In fact, the EAB's decision required that Richmond receive not only reinstatement, but also back pay. One of the dissents in this opinion emphasizes this fact and suggests that, in light of the EAB's failure to find facts, the majority's failure to remand to the EAB for redetermination of an appropriate penalty is erroneous.

Another dissent argues that the failure of the EAB to make findings leave no choice but to regard the preliminary hearing officer's findings as the board's. This dissent includes this text:

The hearing officer's ruling that calling Varnie Richmond a "good ole nigger" was equivalent to calling her "teacher's pet" strains credulity, finds no basis in reason and would appear to be both arbitrary and capricious.

I don't know anything about MS admin law, or about the legal implications of accepting the EAB's determination. For whatever it's worth, though, the second dissent suggests that the majority's willingness to accept the hearing officer's factual determination is tantamount to accepting the hearing officer's judgments regarding the phrase "good ole nigger". I can imagine that for legal purposes, that argument may be correct (though I can also imagine that it may not be). But it's certainly a lot less compelling than PFAW's characterization, which strikes me as clearly misleading.

Having said all that, Dave N is wrong about the MSSC. The SC did in fact reverse the appellate court decision that Southwick joined (text is at http://peo7.com/peo/caselawsDetail52959/Page1.htm), ordering that

Under the particular circumstances of this case, Bonnie Richmond's use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS. However, we remand this matter back to the Employee Appeals Board for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed. Finally, we limit our holding to the unique circumstances of this particular case.

While Dave N is wrong about the affirmation, PFAW's characterization of a unanimous reversal is overstating the matter, in that while all justices either signed the majority opinion or a concurrence, a number of justices also dissented in part. That said, I think PFAW's characterization is more accurate than yours, Dave N.

Ultimately, PFAW should be ashamed of the distortion in its press release on this point. I don't know enough to know whether Southwick's vote in Richmond was deplorable or just mistaken on the law.

His position on the other case at issue, as characterized by the PFAW presser, seems worrying to me. But I don't know the facts of that case, and we've already seen reason to doubt the credibility of the PFAW presser. The text that "Name" excerpts from acsblog also seem worrying, though.

Finally, all of this makes me more sure of my view that simply crediting partisans' arguments is a poor way to assess the merits of the controversy over Southwick's nomination. I wish that Prof. Volokh had provided some facts rather than simply linking to a puff piece by a would-be presidential candidate.

The General writes regarding my first comment that

jonah, taking a PFAW "presser" at face value is laughable.

The General, I'm surprised that you characterize me as such. I included all sorts of conditionals in my comments, and my concluding graf leads with Perhaps the PFAW press release is inaccurate.

You might also note my second comment, above, which I wrote before I saw your odd response to me. Not exactly the face-value treatment.

As for your claim that degradation of the judicial nomination process...is 99% the fault of the Democrats, I guess you missed the 1990s, the Reagan administration's decision to treat judicial nominees as just one more political battleground, and so on. This is definitely a tango with two dancers.

Andrew Hyman

the EAB decison ... said, "The agency can do what they feel like they have got to do."

I did see that part of the hearing officer's decision, and I'm sorry I neglected to mention it.

It's an interesting question, then, why the Supreme Court didn't simply emphasize that point and affirm, effectively remanding to DHS, rather than EAB.

For what it's worth, the SC order emphasizes the requirement that EAB make factual findings. Thus it seems possible that the real issue regarding remand isn't the determination of a penalty per se, but a determination of facts with force of law. Those facts could then form the basis of a later penalty, whether ordered by EAB or DHS.

Obviously I don't know the statute, but is it possible that DHS lacks authority to find replacement discipline when an appeal has succeeded? In that case, the hearing officer's order on this point wouldn't be valid.

I went around and around about the two cases in question over at LGM, and anyone who cares about the facts therein can go look.

Two points nonetheless:

(1) In the Richmond case, the court of appeals was strictly bound by the standard of review, which mandated that even if the court would have reached a different result, the agency decision had to be upheld unless it was arbitrary, capricious, or unsupported by substantial evidence. The court of appeals correctly ruled that it was not -- on the facts, the hearing officer's decision, however dubiously expressed, was not so wacky that it couldn't stand. Appellate courts do not get to right wrongs as they see fit.

(2) In the custody case, there was a vigorous dissent complaining about holding the mother's homosexuality against her. Southwick joined a dissent by Mary Libby Payne, Mississippi's second-ever female appellate judge, which pointed out that the state supreme court had held that the chancellor *could* do just that, and that the intermediate court was bound by that precedent.

(To repeat myself, Payne is a relatively liberal judge, tho surely also a staunch Baptist, and I am sure that Leslie Southwick would never in a million years have imagined that he would come to gried with a Democratic judiciary committee over joining a Mary Libby Payne concurrence.)

Southwick is a very sharp guy -- I saw him at a CLE last week -- and definitely federal-bench material. If the 5th Circuit falls through for him, I hope the original plan to put him on the district court bench is still good.

jonah gelbach:

There's is no question that the GOP has not always conducted itself ideally regarding judicial nominations. The question is one of degree, and of dispropotionate response, and of a difference in the kind of obstruction as well as the quantity.

Regarding the Richmond case, Southwick's court never remotely suggested that DHS lacks authority to find replacement discipline. So, it would not be correct to accuse Southwick of deciding in favor of no punishment whatsoever. On the contrary, Southwick's court said:

By affirming the Employee Appeals Board in this case, we do not suggest that a public employee's use of racial slurs or other terms of opprobrium directed toward a co-worker is a matter beyond the authority of the employing agency to discipline. The unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument. When such an incident occurs, it is incumbent upon the employing agency to deal with it in an appropriate manner.

The Mississippi Supreme Court felt that the decision should be remanded to the EAB rather than to the agency that wanted to punish Richmond. That was a purely procedural issue, and does not remotely suggest that Southwick or any other judge is racist or racially insensistive.

Mississippi law states: "The employee appeals board may modify the action of the department, agency or institution but may not increase the severity of such action on the employee." Thus, the EAB did have power to reduce the punishment. However, I am not aware that the employing agency may not also do so, especially upon the invitation of the EAB. In any event, this Mississippi statute was not mentioned by ANY of the judges on Southwick's court, which leads me to suspect that none of the lawyers in the case cited it until the case reached the Mississippi Supreme Court. Again, there's not the slightest indication of anything sinister on Southwick's part.

Fred Thompson should use his homespun homilies more sparingly, more thoughtfully, or they'll quickly wear thin. Stuart Taylor's analysis is more informative and more incisive and as such has far more cogent appeal.

jonah gelbach,

You'd have a way to go to convince, in any very persuasive manner, that Orin Hatch's JC played similar levels of obstructionism against Clinton nominees. Supplanting restrained interpretations of the "advice and consent" role with more obstructionist, raw power plays vis-a-vis judicial nominees first gained momentum during the Reagan and Bush I years, when Leahy and the Dems roosted in the Senate JC. The Republicans during the Clinton years, with Orin Hatch et al., reflected a decidedly more constrained version of that obstruction, as payback for Bork and Borking in general. If history is to be reviewed the entirety of that history is germane, not selective episodes.

Here's one record that reflects that historical background, excerpt, emphases added:

"As we go to press, [May 27, 1988] there are 22 appointees awaiting Judiciary Committee action; only five have been scheduled for hearings, let alone votes, in the next month. In the first quarter of 1986, 95 per cent of the 21 pending nominees had had at least one Senate hearing; in the first quarter of 1987, only 50 per cent of 24 pending nominees had had a hearing--and the Democrats have begun to schedule second hearings far more frequently. As a point of comparison, at the end of 1987, with only a year to go in the Reagan Administration, an unprecedented 27 nominees were still pending. (Since 1960, as Tom Bethell has noted, there have never been more than four judicial nominees pending one year before a presidential election.)"

John Armstrong:

Fred Thompson's essay on this subject has now been corrected, to say "descendant" instead of "ancestor." And I thought it was a good essay by Thompson. He obviously was not writing a legal brief, in which case it would be lousy, but rather was writing a general expression of his opinion.

What better do you expect from the people who introduced Borking to American politics?

I believe in spirit that the contemporary circumstance, i.e. the last score years, demonstrates an imbalance indicting the Democrats as the perpetrators of obstructionism in the role of advice and consent on judicial nominees. But, the result of an appeal to history as evidence that this didn't start with Republicans roadblocking Clinton -- in a reasonable effort to dissuade the public from believing that the Democrats are only engaging in a slightly more energetic pattern of what the Republicans started easily 'justified' in this age of 'partisanship' -- can't stop simply at the Reagan era.

While a watershed when considering that the verb Borked came into the lexicon followed relatively shortly by the less well known and more difficult to pronounce Thomased.

While some might argue context, in the sense that substantive reference to satisfaction with the way in which a judicial nominee would rule as related to a Senator's predilections, certainly Fortas was a forerunner -- and from what I understand by no means the first to succumb to partisan hurdles placed in the path of a judicial nomination.

Now, maybe as a result of the belief in the populist embrace of a malleable constitution and the explicit countervailing propositions of a certain counterrevolutionary distaste for 'judge made law' (looking to these trends as stereotypes and not joining the battle of whether 'judge made law'can cut for conservatives or a malleable constitution against progressives), Senators are less embarrassed in telegraphing how their substantive policy prerogatives are impacted by a nomination under consideration.

As per usual I appreciate the generally thoughtful nature of the commentary on this blog. While I think it clear - much as at a Federalist Society convention - the general predilection of the bloggers and the hangers on, the discussion proceeds with broad consideration of the issues and an invitation to dissent that enlightens my understanding of these issues.

Certainly Thompson is short on substance -- as are most opeds of the sort. This could be because he didn't think the audience would follow intricate discussion of administrative law or because he hasn't delved deeply into the these cases and is more relying on the notion that Southwick didn't write them and that these 2 decisions represent a miniscule and thus unrepresentative sample of his work as judge - which isn't to say they were necessarily aberrant but simply that if you only had 2 decisions that he didn't write to complain about that you didn't have anything.

While I imagine the analysis purposefully slanted in favor of those opposing his confirmation and would like to see the actual research that went into the proposition that he appeared to favor claims of discrimination by white defendants, I don't think the issue can necessarily be dismissed solely on the basis that appellate tribunals owe deference to the court of first impression, IF there is a statisically significant racial component then some reference to the circumstances of individual cases ought to be made to distinguish the merits of such allegations. This is a slippery slope in the sense that it will inevitably place jurists on notice that they may have to conform their jurisprudence to some affirmative action outcomes -- but conversely, if good interpretive work demonstrates the solid application of principle irrespective of race it might limit the utility of playing the race card. If you constantly play it inappropriately you will wear it out.

I'd be interested to hear Thompson speak to this issue with more substance but think he has done a fair job for the style of audience he is trying to reach. I haven't signed up on his blog and don't know if he ever responds to comments of if a more nuanced presentation of his understanding might be forthcoming there or elsewhere.

Brian

Andrew

I saw that report by Kamen, too. But the figures you cite concerning the total number of confirmed appointments do not in themselves prove anything. The proper way to measure confirmation rates is with, well, confirmation rates---not totals.

As an example, consider the numbers you cite from Kamen, that Bush needs 11 more to match Clinton's 65. According to the article to which you link, President Bush has put 278 district and appeals court judges on the bench, while the same figure for Clinton is 370. Thus, to date Bush has had 278/370 as many confirmations as Clinton.

Suppose that the ratio of appellate-to-district openings under Bush has been the same as under Clinton (this is an empirical issue, and the assumption may or may not be right). Under this assumption, if Bush did as well as Clinton, then we would expect Bush to have

65*278/370 = 48.8

confirmed appellate nominees. According to the numbers you cite, Bush has so far gotten 65-11=54 confirmations. That is 5 more than simple math would have predicted. So if the assumption above isn't grossly false, you have the situation backward.

Now, you do cite Kamen's observation that Clinton reached his total with the Senate in GOP hands for six of his eight years. That's an interesting point, but it shouldn't be oversold. For example, Clinton cut a number of deals with Sen. Hatch (and perhaps others) to nominate their choices in return for confirmation of his own. I'm unaware of a case in which Bush has done likewise (doesn't mean there aren't any, for what that's worth---I'd be interested to know if there are). Moreover, for the most part Clinton picked moderates in an effort to avoid bloody battles. Bush has quite famously made a point of doing the opposite, at least in a number of high-profile cases (not counting Southwick).

Back to the issue of the confirmation rate. This rate is the ratio of the total number of confirmed nominees to the total number of nominations. So, let X be the number of Bush nominations turned away, and let Y be the same number for Clinton nominations. Then the respective confirmation rates for Bush and Clinton are

B = 278/(278+X) and C = 370/(370+Y).

Simple algebra shows that the Bush confirmation rate is less than the Clinton confirmation rate iff

X > (278/370)Y,

and since (278/370) is almost exactly equal to 0.75, this tells us that Bush's confirmation rate will have been less than Clinton's if and only if Bush had at least 3/4 as many nominations fail.

I don't know the numbers necessary to evaluate whether this condition holds. Kamen's article doesn't provide enough information to assess them either, though he does write that

When the Senate left town in December 2000, there were 67 judicial vacancies. Clinton had nominated 41 people for those jobs, but they were stalled.

I don't know how many Bush nominees haven't made it through in total. But unless the total gets to 30 (i.e., three-fourths of 41) including those that have failed to date and those that will not get through between now and the merciful end of this administration, Bush's confirmation rate will have been greater than Clinton's even if we assume that no other Clinton nominees failed besides those 41 pending in December 2000. For what it's worth Kamen's article notes that (at the time he wrote it), there were 25 nominations pending.

In any event, this particular question is an empirical one, not a philosophical one. I don't know the answer, and Kamen's article doesn't give enough information to find it. I'd be interested to have all the numbers, and I'd certainly be happy to update my position if they support yours.

What can be said, though, is that the statistics you cite do more harm than help to your contention that Bush has somehow fared worse than Clinton did. You've committed a simple fallacy here by failing to pay attention to sample size.

I have a unique perspective, in that not only do I practice in the 5th Circuit, I actually clerked for Judge Southwick. These attempts by liberal special interest groups to discredit him are disingenuous and insulting. On the first day of my clerkship, I was told by Judge Southwick that my job was to follow the law, no matter what my personal opinions might be. I can say, without a doubt, that he practices what he preached. I know the man, both personally and professionally, and can state, without, reservation, there has not been a better person or jurist nominated for the 5th Circuit in the 8 years that I have practiced law. Make no mistake, this has nothing to do with Judge Southwick's credentials, and everything to do with racial quotas and ideological manuvering. I am ashamed of the Senate and saddened by this obvious course of slouching towards an ideologically driven court system. This type of character assassination does the country and the Constitution a disservice.

Andrew

I suspect that you must be an economist in order to take plain statistics like Kamen's and make them seem somehow ambiguous.

The math really isn't complicated, and my point is both straightforward and, as you might write, "hard to argue with". I take as an implicit concession your decision to try and obscure that fact by resort to ad hominems. If you really don't understand why totals are per se uninformative when they come from populations of different size, then you should think about the matter for about 5 seconds. That's really all that an obviously intelligent person like yourself should need.

(For what it's worth, if you Google my name you can confirm that I am---heavens!---an economist....Surely I should now be ignored in all things analytical!)

Finally, if you think that using district court nominees isn't useful, then fine. But that doesn't change the simple point I made that the numbers you cite by themselves provide more evidence against your claim than in favor of it. If you think that the ratio of appellate-to-district openings was different under Clinton and Bush, then by all means show me where to find the numbers and I'll update the pre-algebra calculation involved. (Or you can do it for yourself. You just need to understand how to multiply fractions with integers to compute the product of numbers like "278/370" and "65". The rest is just a matter of comparing said product to the difference of a number like "65" and another number like "11".)

jonah gelbach:

I will try to be restarined and polite here. District Court nominees are treated differently in the Senate than Circuit Court nominees. Therefore, please don't bring District Court nominees into this.

In 1978, the Senate created 35 additional circuit judgeships, and by the time Carter left office there were only 5 circuit court vacancies. Some of Carter's appointees are timing their departures to coincide with Democratic presidencies. That certainly does not justify Leahy in forcing Bush to appoint fewer circuit judges than Clinton, given that there is now a sufficient number of vacancies for Bush to equal Clinton's appointment rate.

And even if the Carter windfall did justify Judiciary Committee Democrats in doing such a thing, it would not justify their malicious smears against Southwick.

Andrew

I'm happy to follow your lead and leave district courts out of this. My reply to your "you must be an economist" comment concerned only appellate nominees. And I'm glad you're now being "restrained and polite", because ad hominem attacks and obfuscatory dodges don't exactly raise your credibility.

Regarding your numbers from the CRS, that is all well and good, but not particularly relevant. The relevant number is how many were confirmed, not the ratio of confirmations to nominations. The impact on the judiciary is measured by the number confirmed.

Jonah, your "extreme example" is not helpful. As I already said, there is now a sufficient number of vacancies and a sufficient number of nominees for Bush to equal Clinton's appointment rate. That has always been the case. Your "extreme example" of there not being enough vacancies or not enough nominees is inapplicable here. The Southwick nomination exists, and the vacancy on the Fifth Circuit exists, and it is not useful to hypothesize that they did not exist.

This will be my last comment, at least unless and until I can find an up-to-date figure for the number of Bush circuit nominees (that turns out to be surprisingly difficult to do)

According to the Administrative Office of US Courts, there are 16 Circuit Court vacancies. Bush has made 9 nominations for those 16 vacancies (of those 9, 4 were made 2 weeks ago).

Following are the percentages of Court of Appeals and District Court Nominees Confirmed During a President's first two years in office (one measure only, but generally indicative since judges often delay their retirement until a "friendly" party is in office, for other reasons as well), comprised from two sources:

99% Kennedy **
97% Johnson (65-66) **
93% Nixon
83% Ford (75-76, anomalous, includes a pres. election year)
93% Carter **
98% Reagan **
93% Bush I
90% Clinton **

76% Bush II

** indicates the Senate/Pres. had the same party affiliation

Statistics and numbers can be almost endlessly forwarded and subsequently countered with yet other numbers. Still, Judge Southwick is the more singular focus and nothing substantial has been forwarded against him. As such Southwick reflects a microcosm of the more general problem.

When Clinton took office, there were 17 vacancies for Circuit Courts. When he left office, there were 26. Now there are 16.

Part of Feinstein's statement:

"I truly believe the concerns outlined about Judge Southwick are outweighed by his service to the country, by the many cases he sat on.

"If I believed he was racist, I wouldn't vote for him. But I don't."

Genuine appreciation is due Feinstein, a solitary Dem on the side of well reasoned and responsible discourse and against the types of slurs the other nine (9) Dems, PFAW and others attempted to forward against Southwick. In fact Feinstein lightly rebuked her fellow Dems on the committee for engaging in the slur.

Mr. Gelbach,

Thank you for your considered response and for comprehending what I was attempting to emphasize, and for focusing upon that. Two issues, both worthy, were being discussed: Leslie Southwick specifically and the broader Senate Judiciary Committee's (JC) twenty year history now of Constitutionally suspect tactics, commonly referred to as Borking (regardless of the pro/con merits associated with Judge Bork specifically and individually, which largely is a separate issue). And again, these are Constitutionally suspect tactics and strategems, not merely tactics which ruffle someone's feathers or disturb someone's moral sense (though they can be that as well, such as are reflected in the politics of personal destruction, unsupported slurs, etc).

The Leslie Southwick issue per se has the advantage of being isolable from the larger issue.

But the larger issue, with all its history and its political, ideological and other confused content, obviously, has no such advantage. As such it is rife with pitfalls in terms of interpretation and a more solid epistemic grounding thereof (e.g., one set of numbers and statistics vs. another, competing set). Nonetheless, the history and especially the genesis thereof is highly revealing imo, is probative.