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Post Calls for Southwick Confirmation:

Today's Washington Post editorializes in favor of Senate confirmation of Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit:

BEFORE BEING nominated by President Bush to the U.S. Court of Appeals for the 5th Circuit, Leslie H. Southwick served for almost 12 years on the Mississippi Court of Appeals, where he participated in thousands of cases spanning the gamut of civil and criminal law. A panel of the American Bar Association unanimously found Judge Southwick to be "well qualified" for the promotion, its highest ranking. Yet congressional opponents have latched on to two opinions that Mr. Southwick joined, but did not write, to argue that he is unfit for the federal appeals post. . . .

Judge Southwick wouldn't have been our first choice for this vacancy. Nor do we like the results in the custody and racial slur cases. But we cannot find fault with Judge Southwick's narrow but ultimately legitimate interpretation of the law in those cases, and we do not find in his record the anti-gay, anti-worker caricature his opponents have drawn. Sen. Dianne Feinstein (Calif.), the lone Democrat on the Senate Judiciary Committee to vote in favor of his confirmation, got it right when she concluded that if senators were to examine Judge Southwick's entire career, including his stint as a judge advocate in Iraq, they would find a "qualified, circumspect person."

cboldt (mail):
That's a promising sign.
.
Now, what about Keisler, Kethledge and Murphy, who were first nominated in June last year? Silently under the bus?
8.18.2007 11:51am
Michael B (mail):
It's refreshing to read news or opinion pieces absent any guile and misinformation.

"Serious, careful, honest journalism is essential, not because it is a guiding light but because it is a form of honorable behavior, involving the reporter and the reader." Martha Gellhorn

What a concept.
8.18.2007 2:44pm
Benjamin Davis (mail):
I will try to be a qualified, circumspect person like this the next time someone calls me a "good ole nigger". Feinstein I guess is saying if we just overlook this thing and the opposition of civil rights persons etc (or the heart of the democratic party) then he should be confirmed. I know who is being thrown under the bus (or, if you prefer, to the back of the bus) here.
Best,
Ben
8.18.2007 3:42pm
Maureen001 (mail):
Benjamin, are you aware of a Mississippi law, or even a federal law, that says someone should lose his/her job if they call someone a "good ole nigger"? I missed that part.

The judge was not asked his personal opinion of the use of the slur, he was asked to ajudicate the termination of employment based on the use of the slur. Senator Feinsein is not saying anything of the sort! Your use of the "back of the bus" reference is certainly emotional, but hardly factual.

Tell me. Should California State Senator Majority Leader Don Perata be impeached for bigotry because he called Caucasian people in San Diego who opposed the state paying benefits to illegal aliens "crackers"? Does your racial bigotry door swing both ways?
8.18.2007 4:21pm
sba:
Does anyone have the citation for that case?
8.18.2007 4:26pm
David M. Nieporent (www):
Why would you need to "overlook" it? Southwick didn't use those words to refer to someone; if he did, the opposition to his nomination would be understandable. All he did was join an opinion which held that an administrative agency hadn't abused its discretion. What's most disturbing about your argument, and that of other Southwick opponents (and opponents of other GOP nominees), is that you don't even try to argue that the decision was wrong. It's as if you don't care whether it was right or wrong; it's as if all you care about is rhetorical ammunition.
8.18.2007 4:41pm
TerrencePhilip:
sba, the decision is here.

In googling around for the decision I was amused to find Emily Bazelon saying that he has "waxed fondly about employment at will" as a reason for opposition to him- it's not as if the Democratic Party has any plan to dismantle the employment at will doctrine in the states. Some people might even think it bears some relation to this country's low unemployment record over the last 15 years compared to some of our European allies . . . Perhaps David M. Nieporent has a point here, some of his opponents will seemingly latch on to anything.
8.18.2007 5:30pm
Meh (mail):
I think David M. Nieporent said it well, except that I would not have used "as if."
8.18.2007 5:52pm
Henri Le Compte (mail):
I think that it is obvious that the political Left has become "addicted" to the use of these highly inflammatory slurs against President Bush's judicial nominees. Hence, the reflexive claim that so-and-so is "insensitive to racial equality," or "indifferent to the rights of women," etc. The playbook contains exactly one play-- find the decision (however attenuated) that can somehow justify the use of these slurs, then sit back and let the press do the rest.

The use of these tactics needs to have a cost! Smearing decent judges this way is the behavior of demagogues, not respectable politicians. The dignity and decency of our entire political leadership is being eroded by this sludge. It is in everybody's interest for it to stop.
8.18.2007 7:32pm
John (mail):
The Washington Post continues to surprise from time to time. Unlike its sister liberal paper, the NY Times, the Post does once in a while break party ranks to say something of interest.

Often it is difficult for non-lawyers to distinguish two concepts: (a) the court thinks X is a really good thing and (b) a person cannot be stopped by the courts from doing X. Courts usually just decide the latter. Newspapers and political opponents routinely characterize the decision as the court's deciding the former.

That of course is why this Southwick thing ever took on life. He joined in a decision about the power of administrative agencies, and the democrats have claimed that he held the views of the person who prevailed before the agency. Of course, our crack mainstream media can't do the honest reporting that might have stopped this, but at least the Post has made a contribution to the effort.
8.18.2007 7:37pm
TerrencePhilip:
Another annoying thing you hear is senators saying things like "too many times, he has sided with X interest against Y interest" (employers v. labor, etc.). In the case of Southwick, Sen. Obama criticized him because he couldn't find "one case in which he sided with a civil rights plaintiff in a non-unanimous verdict."
8.18.2007 7:43pm
byomtov (mail):
In the case of Southwick, Sen. Obama criticized him because he couldn't find "one case in which he sided with a civil rights plaintiff in a non-unanimous verdict."

How many civil rights cases that resulted in a non-unanimous verdict did Southwick sit on ?
8.18.2007 10:03pm
Anderson (mail) (www):
I think that it is obvious that the political Left has become "addicted" to the use of these highly inflammatory slurs against President Bush's judicial nominees.

That's a fair criticism, unfortunately. Rather than discussing a judge's record fairly, which would require some intelligence and some knowledge of the law, there's resort to these "gotcha" tactics. (See even Benjamin Davis, above, a smart commenter of generally good will, who opines as if he'd never heard of the standard of review in an appellate case.)

Note how those tactics backfired here. Rather than object, plausibly enough, that Southwick is more conservative than the Democrats care to see, the opponents tarred him as a racist. Then Senator Feinstein was able to say, "well, I've met the man, and spoken with him, and *I* don't think he's a racist."

By making their libels *the* issue about Southwick, the opponents set themselves up for a fall when the libels were seen to be false.
8.18.2007 10:10pm
Anderson (mail) (www):
In the case of Southwick, Sen. Obama criticized him because he couldn't find "one case in which he sided with a civil rights plaintiff in a non-unanimous verdict."

As Byomtov perhaps implies, Southwick sat on an intermediate STATE court of appeals. Most civil rights cases, particularly in Mississippi, are brought in federal court, for obvious reasons.
8.18.2007 10:13pm
Meh (mail):
Holy cow, Benjamin Davis is actually a law professor. It's sort of hard to give him the benefit of the doubt on this one.
8.18.2007 10:51pm
John (mail):
The decision may be found at
http://www.andrewhyman.com/confirmthem/nword.pdf

I misstated the facts in my comment above. An employee of the Mississippi Department of Human Services called another employee a "good ole nigger." The employee was fired and the matter was referred to a hearing on whether the employee should be fired or otherwise disciplined. The employee apologized, and, according to the opinion, the apology was accepted. After the hearing, the hearing examiner decided the employee should not be fired and ordered reinstatement. The DHS appealed to Mississippi Employee Appeals Board, but the Board affirmed the ruling of the hearing examiner. An intermediate appellate court reversed, but the Court of Appeals, with Southwick concurring, reinstated the hearing examiner's decision.

The majority opinion in which Southwick joined made no bones about the offensiveness of the slur: "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. "

But the court concluded that the legal standard to overrule the EAB did not exist, and thus reinstated its ruling.

Of course, every opponent of Southwick interprets this as Southwick's approval of the slur (!!!), instead of his simply deciding what can, and what cannot, be reviewed in an agency decision (see my comment above about "concept (a)" and "concept (b)," as, apparently does "Benjamin Davis," commenting here. (I find it hard to believe he teaches law, however.)
8.18.2007 11:21pm
anonVCfan:
The 2008 election is still 15 months away. Are the liberals absolutely certain they can't just keep up the character assassination for just a few more months?
8.19.2007 1:52am
Visitor Again:
There were two dissenting opinions--joined by a total of four justices. The majority opinion joined by Southwick had five votes. I've read the majority opinion and both the dissenting opinions. I'd say Benjamin Davis is right on. That majority opinion is a farce and a cover for good ole racism.
8.19.2007 8:12am
John (mail):
According to the court, the only review available was an "examination of questions of law arising or appearing on the face of the record and proceedings." Miss. Code Ann. § 11-51-93 (1972).

Under these circumstances, in order to overturn the administrative ruling that the employee should be reinstated, the court would have to find that "there is no evidence to support the EAB's decision," thus making its ruling "arbitrary and capricious."

While it is very easy to say the EAB let the employee off too easily, that is not the question. The question is, was there evidence that supported the decision. And, the court found that there was. Now, you can disagree with that--several judges did--but you cannot use that to say that the majority approved the slur, thought it was perfectly OK as a general matter for such slurs to be made in the workplace, or believed that no penalties should ever be given for such slurs. That is contrary to the logic of the opinion, and contrary to the majority's own words.
8.19.2007 8:51am
byomtov (mail):
Anderson,

Actually, I'm simply trying to evaluate Obama's criticism. Were there lots of such cases, or only a couple? It matters.
8.19.2007 10:55am
TerrencePhilip:
byomtov,

wouldn't it be even more important to know whether the decisions were right, rather than whose "side" Southwick voted on?
8.19.2007 11:16am
Mark Field (mail):

wouldn't it be even more important to know whether the decisions were right, rather than whose "side" Southwick voted on?


This question strikes me as naive. Cases which reach the appellate level almost always require quite a bit of analysis to decide and even reasonable people can disagree on the result. Legal reasoning can usually exclude some extremes, but accepts a spectrum in the middle within which disagreement is to be expected. The final result rests on considered judgment rather than mathematical formula. There is no a priori "right" answer.

For this reason, it makes little sense (at least to me) to focus on single opinions by judges except in the rare case where they truly blow it. It makes much more sense to view the decisions as a whole and see if there's a consistent pattern. That seems to me what most of us do in practice. We describe Scalia as conservative and Brennan as liberal not based on one decision, but on the basis of their collected works.
8.19.2007 11:36am
byomtov (mail):
I think Mark Field covered the ground pretty well.

If there are lots of cases of a certain type that could plausibly be decided either way, and a judge always rules the same way that suggests a bias. And "suggests" may be too mild a term.

The numbers are stronger than is intuitively obvious. If a perfectly impartial judge hears 20 cases where there is a 25% chance the plaintiff is right there is about a .3% (that's 3/10 of 1%, not 3%) chance that he will rule for the defendant 20 times.
8.19.2007 1:28pm
Michael B (mail):
Still another question to ask: why didn't Obama furnish us with the details, including a list of the specific cases he has in mind, instead of simply throwing out the general allusion and indictment?

Politicians occasionally complain of the "sound bite" media culture, but they obviously take advantage of it far more than they complain about it, much less taking proactive steps to counter that "sound bite" culture. After all, in this case, Obama could list the specific cases he has in mind and could even highlight some of his own concerns on his campaign's or his Senate seat's web site. But not only do we not get such specific information from Obama, we don't even know if he is referring to two cases or two hundred.
8.19.2007 3:45pm
TerrencePhilip:
Michael B, perhaps he didn't identify any specific cases because he took the Mark Field view- inquiring whether the cases were decided correctly or not is "naive." All that matters is whose side he was on, how often.
8.19.2007 5:36pm
Henri Le Compte (mail):
TerrenceP:
Call me a cynic, but I assume Obama didn't name specific cases because he simply didn't know of any. If he did, why wouldn't he name them?

This statement by Sen. Obama is nothing more than a rhetorical smoke-screen. A superficially plausible complaint that is meant to hide the fact that he, and most of his Democratic colleagues are following the dictates of loud, liberal activist groups. Southwick never had a chance to get Obama's vote. Never.
8.19.2007 8:12pm
Benjamin Davis (mail):
Dear friends,

I stand by what I wrote. I recognize that persons can disagree on these things etc. The point I am making is in the context of a political confirmation of someone for a lifetime appointment. Just like when I vote for a President I vote as a whole person not as my job or my marital status or my race or my gender or anything else. And I permit myself to write to you that in 2007 no black person should be put in a position on a job where he is subject to being called a "good ole nigger" and have to consider accepting an apology from the bonehead who said it in order to keep his job (I know you will say that is speculation but imagining the scene I find it easy to read this into the facts) and "go along to get along".

I hope tomorrow I will be able to link for you a letter from 1936 written by a Negro Women's group to Sears Roebuck in Birmingham in which they objected to being called "Mary" or by their first name when they were shopping in the store. They wanted to be called "customer". What you do not seem to see in the things that I say is that they come out of a long history - a collective memory kind of thing. There are things there that just echo.

"Good ole nigger" is just too raw a term and an acceptance by a black man of an apology in this context is too reminiscent of way too many servile acts in our history (especially southern black/white relations) done to go along to get along. And the opinions use of words of dismay and shock does not comfort me in thinking that Southwick "gets" in any meaningful sense what I am speaking about. Just like Justice Roberts does not "get it" or Clarence Thomas for that matter. The words appear formulaic - like the wringing of hands at a lynching.

My mother use to say when he was on the court, she slept well at night knowing that Thurgood Marshall was on the Supreme Court. I will not sleep well at night knowing that Southwick, if confirmed, will sit on this court. Not in the current environment. But, obviously, others will sleep well at night. So, please, sleep well at night.

Please look at the gauntlet - guys fired, seeks hearing, hearing examiner says reinstate ("it's not so bad"), court below gets it and reverses hearing examiner ("it is so bad and meets standard"), court above says court below got standard wrong ("you need to use/understand the standard that allows the "it's not so bad" decision to stay). It is instrumentalizing law - that's all - just like the school decisions and Roberts opinion. Here it is being used to basically allow a person to get away with saying "good ole nigger". I guess I could imagine some other times when it would be done to not allow someone to get away with saying "good ole nigger".

I AM shocked by that term and that the legal process ended with a result that a person who says that kind of thing can still be reinstated.

On the black man's apology, it might have been altruistic or it might not have been (I can also imagine the black man extracting some kind of payment for his apology (sort of a - "you want my apology then pay me it's just business")). This all does not turn on whether the black man accepts the apology. Whether or not the black person accepts the apology I would like to think that an organization would think - "Gee we really do not like Charlie doing that." when they fire the offender and be backed up by judges on the court.

Peace as always,
Ben
8.19.2007 10:30pm
byomtov (mail):
Call me a cynic, but I assume Obama didn't name specific cases because he simply didn't know of any. If he did, why wouldn't he name them?

Because his point is about what all the cases taken together tell us, not about any specific one.

Is that truly so hard to understand? Amazing.
8.19.2007 11:49pm
guest:

Because his point is about what all the cases taken together tell us, not about any specific one.



Byomtov: if Obama's point was about "all the cases taken together," he should have given us at least a tid bit of detail. Like, "The candidate sat on 15 civil rights cases involving a dissent, and he never took a pro-civil-rights position."

When people make empirical claims without even a shread of detail, they invite speculations of data-cooking. Especially when those claims involve the "I found nothing" result. The natural responses are always "how hard did you try?", "where exactly did you look?", and "if you are looking for a subset of X, does X exist in the first place?"
8.20.2007 2:17am
plodding blockhead:
MichaelB, Guest, TerrencePhilip, etc.

At his May 10 hearing before the Judiciary Committee, Sen. Durbin cited the example of US District Judge Frank Johnson (who upheld civil rights in the south in the 1950s, 1960s, and 1970s, despite repeated death threats to himself and his family), and asked Southwick if, in his career in public service, he had ever made an unpopular decision in favor of a minority, perhaps in cases in which the court of appeal split. (This question did not come entirely from left field, as the public opposition to Southwick included an analysis of all of the tort and employment cases decided during his tenure on the court of appeal in which at least one judge dissented, which found that he decided against the plaintiff and in favor of corporate / business interests in 89% (160 / 180) such cases.) In response to the question, Southwick was unable to come up with a single instance. Durbin later said that he thought it might have been unfair to ask the question without giving Southwick time to think about it, and asked Southwick to think about it and give a written response, but Southwick still was unable to come up with an example.

Obama then released a statement explaining his opposition to Southwick, which states that:

The nation has just witnessed how quickly settled law can change when activist judges are confirmed. In decisions covering employment discrimination to school integration, the Roberts-Alito Supreme Court has turned back the clock on decades of hard-fought civil rights progress. Judge Southwick's answers to the Senate Judiciary Committee failed to excuse his disappointing record on cases involving consumers, employees, racial minorities, women and gays and lesbians. After reviewing his 7,000 opinions, Judge Southwick could not find one case in which he sided with a civil rights plaintiff in a non-unanimous verdict. I urge the President to nominate a jurist with the demonstrated capacity to provide all Americans with a fair hearing.

You may continue to disagree with Obama's position and his reasons, but at least now you have some facts.
8.20.2007 4:21am
David M. Nieporent (www):
Plodding, the question was still pretty much from left field. The civil rights era is over. There's no outraged public to issue death threats against judges who rule in favor of minorities. Again, note that there's no consideration -- including in the boilerplate Alliance for Justice hit piece -- as to whether Southwick was wrong.

Contra Mark Field's argument, most decisions at the intermediate appellate level do have clearly right or wrong answers. Not always, of course, but one can only determine that by looking at the actual cases. Or one could look at what happened to the cases; were any of them reversed by the state Supreme Court for failure to follow existing law?


As for Professor Davis's continued insistence that Southwick should have changed the judicial standard of review, I assure him that there are many people -- conservatives, often -- who are regularly frustrated with the amount of "due process" protection a government employee gets when the government seeks to fire him. But somehow I don't think that Prof. Davis actually wants to abolish government employee unions or eliminate any notion that government employees have a "property interest" in their job such that they're entitled to due process; this just seems to be special pleading on Prof. Davis's part.

The issue that Southwick faced was not whether the employee should have been fired; he solely had to decide whether the trial court had sufficient grounds to reverse the employment board. He agreed with the majority that it didn't. Perhaps the state of Mississippi should have a "one strike and you're out" policy on (racially) offending government co-workers, but it doesn't, and it wasn't within Southwick's power to create such a policy.
8.20.2007 8:27am
Boyd (mail) (www):
Mr. Nieporent's last comment brings another factor to mind: courts make their decisions in the context of the law. So is it also conceivable that Missippi law is structured such that it would tend to encourage a conscientious jurist to make "anti-civil rights" decisions?
8.20.2007 10:12am
Michael B (mail):
plodding,

Thank you for the info and, in part, the AFJ paper serves to negate my prior concern about no detailed information, though I continue to believe a case by case analysis is needed. Too though, I'm well aware of Nan Aron's Alliance for Justice (AFJ), for example an exchange with Chris Matthews and Aron goes far to explain Aron's views of what an "extreme" justice is deemed to be, excerpt:

MATTHEWS: Scalia was approved by 98-0 to be put on the court. And he served all these years. Why would all of sudden become an extraordinarily bad proposal?

ARON: He has a record on the Supreme Court of extremist, of holding -- upholding laws that hurt people, of denying ordinary Americans their rights and protections. ...

Likewise, I'm in agreement with David's comments above and find Benjamin Davis's views particularly strident and contrary to standard review practices, as I understand them. As to some of the specific cases mentioned in the AFJ review, I'm not consistently in agreement with Southwick's positions on first blush, but I also find nothing egregious or otherwise sufficiently persuasive against Southwick's nomination.
8.20.2007 12:30pm
elChato (mail):
plodding,

are these "some facts" (ratio of whose "side" he was on) actually more important than- to the point of making irrelevant- the question of whether the decisions he made were RIGHT? I see two decisions being actually questioned in all the years he was a judge.
8.20.2007 4:03pm
Benjamin Davis (mail):
I must admit that I am amazed sometimes by the - how do you say - inability or unwillingness to understand the history of these things. Maybe I appear strident to some because this case is not an isolated case but comes from a long history of cases and hurts that are clear invisible to many people. After all, Ralph Ellison wrote a book about it called the Invisible Man.

I am in a position now to give you a link to which is a letter written in 1936 to Sears Roebuck in Birmingham, Alabama by a black woman who was the President of the Colored Women's Club about her treatment at the store by a salesperson. No doubt she would have been considered strident in her day, but I would imagine that most people today would remark on her courage given the place and time. My sister finds these things and sends them to me.

Peace as always,
Ben
8.20.2007 4:09pm
Benjamin Davis (mail):
Well that did not work. Let me try again.

I must admit that I am amazed sometimes by the - how do you say - inability or unwillingness to understand the history of these things. Maybe I appear strident to some because this case does not look to me like an isolated case but comes from a long history of cases and hurts. These cases and hurts are apparently invisible to many people so the words do not resonate the same way I guess. Ralph Ellison wrote a book about this invisibility called the Invisible Man.

I am in a position now to give you a link under historical documents on my faculty website to Letter from Birmingham circa 1936
which is a letter written in 1936 to Sears Roebuck in Birmingham, Alabama by a black woman who was the President of the Colored Women's Club about her treatment at the store by a salesperson. No doubt she would have been considered strident in her day, but I would imagine that most people today would remark on her courage given the place and time. My sister finds these things and sends them to me.

Peace as always,
Ben
8.20.2007 4:47pm
Michael B (mail):
Benjamin Davis,

With due respect for you and for your concerns, the entire history is not being addressed, rather what is being addressed is the interpretation of a specific 5-4 appellate case involving an administrative ruling. Even when the case was further appealed to the Mississippi Supreme Court the Supremes remanded to the originating administrative board not to overturn the woman's reinstatement, but rather to seek a lesser penalty or explanation only, thus largely agreeing with Southwick and the earlier 5-4 majority.

Likewise, this is not the 30's, nor is it the 50's or 60's in terms of race relations; however deplorable the woman's statement was, it is not more broadly reflective of societally endemic conditions, as it would have been during an earlier era. The general social environment has at least some bearing. E.g., the woman made a genuinely shameful statement, but she was not acting as the leader or a member of some racially obsessed social group.

Too, to compare criticisms of your interpretation of the case in question with the black woman who was mistreated in 1936 is more than a little incongruous, if not strident from the perspective of a legal analysis. Indeed, you have yet to forward a legal analysis as such. Moral suasion is well and good, but this is a higher level appellate jurisdiction being discussed.

Finally, even the earlier, general note concerning the 160 of 180 cases is misleading since in ninety-six (96) of those cases Southwick joined the majority. (In a footnote in the AFJ paper it is noted that "[i]n sixty-four of those cases [35%], Judge Southwick was on the side of the dissenters. In forty-seven of those cases [25%] he was out of line with all but one or two other judges on the court; and in twenty-four [13%] he was joined by just one other judge." Which further implies Southwick was never the lone dissenter in the 64 cases where he did dissent.) As to the 20 cases where, according to AFJ's wording, Southwick sided with "workers, consumers and other victims" (emphasis added), AFJ provides no analysis.

Southwick can reasonably be thought of as "pro-business" within AFJ's scheme of things, a scheme where "business" is contrasted with "victims." As to an analysis of the specific cases, I'd also want to seek another opinion, other analyses, beyond Nan Aron's AFJ's brief. AFJ has been at the forefront of the often dubious tactic of Borking (and "Thomasing") in general, very much in league with Kennedy, Durbin, Leahy, Schumer and others on the Senate Judiciary Committee. Well and good, they can have a voice, but theirs is one voice only from a decided ideological perspective and should by no means be the dominating or final voice.
8.20.2007 7:19pm
plodding blockhead:
El Chato -

Yes, those facts are relevant. They are relevant because some commenters suggested that Obama had accused Southwick of never ruling in favor of civil rights plaintiffs but claimed that Obama was unable to identify the decisions he was relying on, so perhaps Obama was "cooking" the data. The account I gave explained that it was Southwick who was unable to identify such a decision, and Obama apparently relied on Southwick's answer.

The specifics of how Southwick decided in the general run of cases in which the court was divided are relevant for the reasons that Mark Field and byomtov ably described above. Sure, we can also debate whether particular decisions are "right" by various competing standards, and when a great many people would agree that a particular decision is egregiously wrong, that can be a useful exercise. That is the focus on the two specific cases (whether they in fact rise to that level or not). But bias in favor of or against particular interests (or "judicial philosophy," if you prefer) tends to be revealed over the long run. And if a judge has a reflexive tendency in one direction, that's relevant.
8.20.2007 7:34pm
plodding blockhead:
David M. Nieporent -

Durbin's reference to Judge Johnson was grandstanding. What was not out of left field was the substantive question (have you ever taken an unpopular position in a decision in which the Court of Appeal was divided?) because there had been public criticism of the fact that Southwick's record suggested that he very rarely did. One thinks that he would have been prepped on that issue, even if only to say that he calls balls and strikes.

As for your suggestion that "most decisions at the intermediate appellate level do have clearly right or wrong answers," that's why most decisions at the intermediate appellate level result in unpublished unanimous decisions. To avoid that problem, the focus here is on decisions in which at least one judge dissented. Those are the cases that most frequently do not have clearly right or wrong answers. Plus, in 67 of the 180 cases in the sample, Southwick was dissenting. By your standard, it would have been more fair to have said, "In over 37% of cases involving individual plaintiffs against business interests, Southwick sided with business interests, even though he was wrong, according to a majority of his fellow judges on the Court of Appeal."

That would be unfair, but it illustrates the uselessness of voting for or against competent judges on the basis of how often they are "right."
8.20.2007 7:50pm
Maureen001 (mail):
Benjamin Davis:

Should I be trotting out my ancestors' histories over "Irish need not apply" on one side, or "Juden Verboten" on the other side as I go through life? Do you think the past treatment of my ancestors is relevant to each and every legal question that arises in a court of law?

As I read it, that particular case focused on Mississippi employment law, and while 4 members of that court did not agree with that interpretation, the majority did. Do you think procedure should have been set aside in this case, because of your history (or to be fair, because of the shared history you and the maligned individual in the case -- NOT the defendant -- have together?) This, to me, is a glowing example of how things are supposed to work. If the people of Mississippi are uncomfortable with the lack of specific law to address this outcome, then they need to work a change through their legislature, NOT the court. If anything, the ruling highlights what the actual laws are, and your discomfort illustrates a possible need to review the statutes; none of this has any bearing on Judge Southwick, however.

I would not sleep well in a country that would block a competent judge from higher appointment because some folks would be uncomfortable. Is my discomfort any less valid than yours or your sister?
8.20.2007 10:05pm
BGates (www):
Benjamin Davis, I'm not going to sleep too well knowing you're a law professor. Are there any circumstances under which a judge should not reflexively side with the black person but instead consider, oh, the law?
8.21.2007 2:40am
David M. Nieporent (www):
Prof. Davis,

I doubt anybody here fails to "understand the history of these things." But the rule of law requires that judges base decisions on, well, the law, rather than American history. What happened in 1936, or 1966, has no bearing on a case in 2006, involving other people. There is no historical reparations exemption to the civil service rules, and it was those civil service rules that the court was charged with interpreting.


Michael B:
Southwick can reasonably be thought of as "pro-business" within AFJ's scheme of things, a scheme where "business" is contrasted with "victims."
And, indeed, as you imply, this is true only in AFJ's view of the world. To pick one example, the report cites a case called Whitehead v. Johnson, in which Whitehead signed a release and then asked the court to pretend that she didn't know what she was signing. While it's obvious that this is beneficial to Laura Whitehead, it's not clear why it's beneficial to any other person for a court to rule that people can just ignore contracts after they sign them.

Perhaps even odder is the AfJ's claim that employment at will is a "controversial doctrine." Yes, so controversial that it's the law in all 50 states, with some local quirks in Montana.


Plodding:
As for your suggestion that "most decisions at the intermediate appellate level do have clearly right or wrong answers," that's why most decisions at the intermediate appellate level result in unpublished unanimous decisions. To avoid that problem, the focus here is on decisions in which at least one judge dissented. Those are the cases that most frequently do not have clearly right or wrong answers. Plus, in 67 of the 180 cases in the sample, Southwick was dissenting. By your standard, it would have been more fair to have said, "In over 37% of cases involving individual plaintiffs against business interests, Southwick sided with business interests, even though he was wrong, according to a majority of his fellow judges on the Court of Appeal."
No, actually, that wouldn't be fair at all. The correct denominator is the total number of decisions, not the number of non-unanimous decisions. That would properly illustrate the frequency at which the rightness or wrongness might be unclear. (Or maybe not; it could be a clearly right decision with one rogue judge dissenting.) But the point here is that AfJ doesn't discuss whether the decisions are right or wrong, but which "side" Southwick sided with, as if there's no legal issue, but only an opinion poll.
8.21.2007 8:56am
Benjamin Davis (mail):
My sister has sent me some further information. The woman writing the letter is Mrs. Charles W. Brooks and she was my grand-aunt. I believe this is Dovey Brooks, the sister our grandmother named her own daughter, Dovey, after. Laura Brooks was also their sister. Laura married Charles Brooks first and then died. Then, Dovey Brooks married him probably out of convenience because she was taking care of him after her sister Laura died. When my sister went to Birmingham for the Faunsdale, Alabama family reunion a couple of years ago, she found the gravesite for Dovey Brooks, Laura Brooks, Reverend Charles Brooks and our Great grandmother Chaney Smith. She attended the church where Reverend Brooks used to be the pastor. Apparently he was a very well-known preacher in his day and he is supposed to have run the only black high school in the state at the time. He corresponded with Booker T. Washington at the time.

Another story passed to me by someone is when he was 5 years old he went with his dad to a car dealer. When the salesperson said to his father "Whatchu want boy?" His father grabbed him and walked out of the store.

My dear friends, you seem to be missing something fundamental.

First, the question is whether a Senator should vote to confirm Southwick. That is a political decision based on how a Senator weighs his record. Each of you has your views and can weigh in as you wish with your Senator to encourage that Senator to vote the way you want him/her to vote. You think that the way Southwick has approached these problems is perfectly fine. If you want to do that based on your history based on whatever you want you are free to do that. And you are free to articulate whatever you want here subject to the guidelines.

Second, just as you are free to do that I am free to base my opinion of Southwick on what is relevant to me. You misconstrue my statements but that is your freedom to do. All I am saying is that a person knowing the history of racial slurs in the South who learns of Southwick's decision might decide he is not sensitive enough in applying the law to all parts of society. He is a Clarence Thomas and he is not a Thurgood Marshall. I do not want my Senator to vote for a Clarence Thomas. I would want my Senator to vote for a Thurgood Marshall. In that split decision 4 justices went one way and 2 went the other interpreting the statute. I could imagine that if the phrase was "juden verboten" or the phrase was "irish need not apply" used in this context that persons (as would I) would feel uncomfortable about Southwick's decision.


Now I feel the need as happens in these cases to make analogies to white persons as it seems it is very hard for persons to grasp what I am saying when I speak of black history only. Take Alan Dershowitz, he was rejected from I believe 32 prestigious law firms when he came out of law school because he was a jew. Take Sandra Day O'Connor, she could not get a lawfirm job coming out of law school because she was a woman. Do those experiences make them sensitive to certain points? Of course. Would that come out in their writing or jurisprudence? Of course. Could I decide whether I wanted one or the other of them on a given court based on that history and sensitivity reflected in their jurisprudence and writing? Of course. Could I ask my Senator to confirm one of them for a federal judicial position? Of course.

Third, on a legal blog you are missing the fundamental point that the decision to confirm Southwick is by its nature political - the Senators are not sitting as an appeals court in the decision to confirm.

Fourth, as to a legal argument, in addition to not wanting to learn the interstices of Mississippi employment law and appellate review right now (I have other fish to fry) I am trying to make a "person in the street" argument why someone would believe that Southwick should not be confirmed. It is significant to me that the civil rights organizations and others have been against Southwick. These are persons that have been fighting for generations for the integration of blacks into this society - I have the opportunities I have thanks in significant part to their efforts. I am not dismissive of them and their views - they do know the history.

Fifth, one thing that I find is a mantra when we speak about history is that people say "that was then and this is now". But anyone who has a parent over 50 in this country should know that their parent lived in a time of dejure and defacto segregation and - if they were white - benefited from it. They benefited in the way federal benefits were provided in the GI bill, in housing, in schools and the rest of it. That history as I tried to explain in the 12 step plan I posted years ago is present today. It is in me as I integrated private schools from 1st grade and saw what my parents were subject to in seeking that better life for my sister and I. I have noticed a tendency to say "that was then and this is now" as if "now" was some magic place where no racism could live because "well, we live now and we are not racists." I think that you are being a little naive if you really think that.

Obviously there are many hurts - but this case was about "good ole nigger" - a very specific kind of hurt to a very specific person from a very specific group with a lot of painful history in this country over 400 years. And I think that some slurs require more than just lipservice of shock and dismay when they are said in 2007 - even in appellate review. I recognize the approach being taken by Southwick but I am not required to think it is the only way. Judges differed.

We disagree. So be it.

Peace as always,
Ben
8.21.2007 10:09am
Mark Field (mail):

I doubt anybody here fails to "understand the history of these things."


A number of the posts in this thread demonstrate that you very much should doubt their understanding of history.


But the rule of law requires that judges base decisions on, well, the law, rather than American history. What happened in 1936, or 1966, has no bearing on a case in 2006, involving other people.


Prof. Davis answered this very well in his point 5. Your implicit assumption that MS today is a color-blind society in which the rights of all receive equal and exact protection, unaffected by culture of history, is mere pretense.
8.21.2007 1:00pm
Michael B (mail):
Mark Field,

No one is assumming a thing, implicitly or otherwise, likewise no one is imagining we are a color blind society in any type of perfect or "exact" sense. What has been noted is that 2007 is not 1936 nor is it the 50's or 60's in terms of race relations. That you are overstating what has been said is itself indicative of a weakness in your rationale, thus a strawman argument, and a weakness compounded by a lack of any legal analysis.

What is being addressed is the review of an administrative case involving the remark of a low level employee - not a manager or hiring manager or administrator - within a governmental agency, Mississippi's Dept. of Human Services (DHS). Likewise, there are competing legal issues at play (e.g., concerning the discretionary parameters of a state administrative agency).

"I could imagine that if the phrase was "juden verboten" or the phrase was "irish need not apply" used in this context that persons (as would I) would feel uncomfortable about Southwick's decision." Benjamin Davis

Yet again, the issue is not discomfort, no one feels comfortable with the remark made by the woman in question, to the contrary the remark has been described as deplorable, embarrassing and shameful. Instead the issue is one of an appellate court's review of the administrative board's decision, following a circuit court appeal and review.

The woman, a social worker, had an unblemished record prior to the offending incident and, further, the offended party, a black female, stated that, though she was in fact offended the incident had caused no workplace problem. Additionally, one of the original allegations was disproven (the charge of a second slur). Further still governing statutes indicate the appellate court cannot overturn an administrative board's decision barring legal error or "arbitrary and capricious" judgment. In summary, both practical circumstances and governing statutes serve to support the majority's decision.

The decision, linked previously herein, is here (small pdf). It's a brief ruling wherein both the reasoning in support of the material facts and the legal reasoning as such was sound, probative and well measured throughout. As such, it's telling that this case has been so hyper-leveraged and crassly distorted (e.g., implying Southwick himself tacitly agreed with the slur). Deplorable and perhaps even shameless - the willingness to impugn another's reputation for political and ideological gain - but very much in line with Nan Aron's AFJ's twenty year history and the Senate Judiciary Committee's Borking and Thomasing tactics - contrary to the Constitution's "advice and consent" tenet.

"Mere pretense," indeed.
8.21.2007 6:33pm
Benjamin Davis (mail):
Read the dissents of Diaz and especially Payne - the majority did not "hear" in their review the evidence. Payne goes to great lengths to explain what neither the majority, nor the hearing officer or EAB were able to or willing to understand. Read the hearing officer's report as described in the Payne dissent. You can not imagine the anger I feel reading that and thinking of this black woman sitting there listening to that drivel at a hearing on her job after she was called a "good ole nigger". There are so many subtleties in the black woman's responses that seem to fly right by everyone but the dissenter's ear.

Here is one key part of the dissent.

"The hearing officer and majority opinion seem to suggest that absent evidence of
a near race riot, the remark is too inconsequential to serve as a basis of dismissal. Such a
view requires a level of myopia inconsistent with the facts and reason.
It is (1) the remark, and (2) the lack of judgment in making it in a professional
meeting with top departmental executives, which satisfy the requirement, "that to
continue the employee in the assigned position could constitute negligence in regard to
the agency's duties . . . to other state employees."
The majority opinion is a scholarly, but sanitized version of the hearing officer's
findings and is subject to the same infirmities found in that opinion."

The hearing officer's opinion is arbitrary and capricious as is the EAB that adopted the hearing officer's report in toto. The court below was right in reversing. The Southwick court majority was wrong for the eloquent reasons in the dissent. So when I am going to take a look at confirming Southwick, a little flag goes up in my head about Southwick and as is the right of someone, I can recommend that my Senators not confirm this person because Southwick does not "get it".

Best,
Ben

Best,
Ben
8.21.2007 10:23pm
Randy R. (mail):
The Washington Post ran an editorial in today's (Aug. 21) page taking exception to Southwick's nomination, and strongly suggests that he be rejected.
8.22.2007 2:44am
David M. Nieporent (www):
Prof. Davis answered this very well in his point 5. Your implicit assumption that MS today is a color-blind society in which the rights of all receive equal and exact protection, unaffected by culture of history, is mere pretense.
I did not make such an assumption, implicitly or otherwise. (However, the implicit assumption that things are no different in MS today from decades ago, before large numbers of people alive today were even born, is ridiculous. Just like the absurd assumption that people attending racially homogenous schools because they live in racially-homogeneous areas is in the same universe as racial segregation.)

My only 'assumption' -- explicit, not implicit -- is that judges are supposed to base their decisions on the law. And the attacks on Southwick misstate that law. At best, they treat the case as if the procedural posture were the opposite -- as if Southwick ordered the employee reinstated because he personally believed that it was okay to say "good ole n-". But he didn't express any such view.

Southwick was not expressing his personal view on whether the employee should have been fired. He was not entitled to do so. He was not evaluating the hiring decision de novo. He was not entitled to do so. His only task was to determine whether the EAB was acting within its legal authority. I would think lawyers, of all people, would understand the concept of deferential review, would understand the idea of "I might have decided the case differently if it were up to me, but that's not my call to make."
8.22.2007 3:44am
David M. Nieporent (www):
I wonder how the people who think that it was an abuse of discretion not to fire her feel about the Supreme Court's decision in Rankin v. McPherson, in which the liberal members of the Supreme Court strained to find a reason why it was unconstitutional -- not merely unwise, but unconstitutional -- to fire an employee for offensive speech.


As for Prof. Davis's last post, this statement is confusing:
You can not imagine the anger I feel reading that and thinking of this black woman sitting there listening to that drivel at a hearing on her job after she was called a "good ole nigger".
It wasn't a hearing on "the black woman"'s job; it was a hearing on Bonnie Richmond's job. And "the black woman" was far less upset about it -- I know, you simply refuse to believe her when she says so -- than you are. And the fact that you feel "anger" is precisely the problem; judges are supposed to base their decisions on reason, not emotion. As to your argument:

1. Diaz's dissent provides no support for your view; he does not say that she ought to have been fired. Rather, he says that the EAB erred in not providing for a lesser penalty.

2. King's dissent (not Payne's; Payne concurred in it) is disingenuous in saying that the EAB/majority was looking for evidence of a "near race riot." They were looking for evidence of ANY disruption; they couldn't find it.
8.22.2007 4:26am
Michael B (mail):
Yes Randy, the WaPo gave Nan Aron, of all people, some print space to run a sortie against Southwick. Ed Whelan, at Bench Memos, answers Aron in a succinct, three-part post titled "Aron-neous Assault on Judge Southwick," Part 1, Part 2 and Part 3. Since Whelan largely provides summary analyses of the cases and opinions Nan Aron, characteristically, distorts, it's difficult to provide adequate condensations, but Whelan's lead paragraph is broadly indicative:

"Nan Aron of the Alliance for Justice continues the Left’s scurrilous attack on the nomination of Judge Leslie Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit. I’ll turn soon to the two cases that Aron leads with—cases that Alliance for Justice’s cohort in mugging, People for the American Way, didn’t even see fit to mention in its 7- page letter opposing the Southwick nomination. But let me start with Aron’s wildly mistaken descriptions of the two cases that have been at the forefront of the assault on Southwick. (I’m going over ground that I’ve trodden before, but that’s made necessary by the fact that Aron’s modus operandi appears to be that a lie repeated often enough becomes respectable.)" (Emphasis added, but that emphasis does in fact accurately describe Nan Aron's now lengthy and well documented history of primary deceits and character assassinations, the politics of personal destruction in the service of decidedly Leftist ideological agendas vis-a-vis the judicial nomination process and elsewhere.)

Whelan then proceeds to demolish Nan Aron's characterizations of four or five specific cases in Parts 1, 2 and 3. Nan Aron, with her arch corruptions and advocacy, throws contempt upon the Constitution's "advice and consent" clause, in the process deploying character assassinations and primary deceits.
8.22.2007 9:18am
Michael B (mail):
Yes Ben, the very best. Thank you.

I read the entirety of the record, a brief thirteen pages, and was persuaded, indeed was positively impressed by, the reasoning and attention to detail reflected in the majority's opinion. By contrast I thought the dissenting judges failed to heed some of the relevant detail and failed to give more, or better, individuated care to the statements of each person involved and the evidence in general. A commonly voiced problem with the law is that it can result in applying generic templates to highly individuated cases; the majority's opinion impresses in taking those particulars into account, by contrast the dissenting opinions avoid doing so imo.

Nonetheless, I'd allow that reasonable people can disagree and view things differently, but that is very much one of the problems. The anti-Southwick forces, initiated by Nan Aron's Alliance for Justice campaign and the Left/Dem senators who joined in with that campaign, have so profoundly distorted this appellate review and other cases that no one among the anti-Southwick forces can bring themselves to admit that reasonable people can disagree. I'd challenge anyone who holds that view to read the first six or seven pages of the appellate decision, the majority's opinion (paying attention to the material facts and the governing statutes as well as the care given to each individual involved, their statements, etc.), and then attempt to argue on reasonable/rational grounds that responsible and judicious people cannot disagree. (In fact I'd argue the majority opinion is far more, is decidedly more, persuasive, but am more simply arguing presently that reasonable people can disagree.)

If some of the circumstances had been proven otherwise, for example if the second use of the slur had taken place (it was proven otherwise, indeed it was shown the offending party was highly apologetic to the offended party) or if other witnesses had told a different tale, I would have a different view. On the other hand there is substantial and virtually conclusive reason to believe the majority would have had a different view as well if any of the critical material circumstances had been different.
8.22.2007 9:41am
Benjamin Davis (mail):
The black woman was subject to the drivel at a hearing on her job (at her place of work) that trivializes what happened to her and her responses. The hearing was also on the job of Ms. Richmond who put her job at risk by her words.

The dissent does not trivialize either of those things.

One "gon" on your job is good enough for me and apparently also for the dissent.

I see that we read the dissent and come to very different views about it's analysis. Some love the majority, I do not. So I am recommending my Senators not confirm Southwick because, in my personal estimation, Southwick does not get it and will never get it. Also, the dissenting judge understood and said that the majority was just a sanitizing of the hearing officer's words. Not good enough.

Best,
Ben
8.22.2007 11:03am
Michael B (mail):
It's not a matter of "loving the majority" in some absent minded sense and with a predetermined outlook, to the contrary it's a matter of paying heed to both the practical and the legal reasoning employed by the majority, as represented in the first six or seven pages of the decision.

You are heavily invested in this and I applaud that and appreciate it as well, without wishing to diminish the history and the subjective qualities reflected in your involvement. Otoh, again, we are addressing an appellate review of an administrative board's decision relevant to a very specific set of circumstances. Imo those details and circumstances, as thoughtfully explored in the initial six or seven pages of the case in question (again, in pdf format, here), are in fact probative and, imo and given all the specifics, are determinitive as well.

The best.
8.22.2007 12:33pm
Benjamin Davis (mail):
We agree that we read the opinion differently and that is fine. The best to you too.
Peace as always,
Ben
8.22.2007 3:05pm