Mississippi Conservatives Respond on Southwick

^{See also: Leslie Southwick and the Republican Paradox}

Local blogger Alan Lange has responded to last night's critique of Judge Southwick's record. I'm calling attention to it here because I think Alan's response is relevant to the larger controversy over Judge Southwick. Alan writes:

Oh, Mr.-defender-of-all-liberties, where were you when these "offensive rulings" were passed down?

The same place I was a week ago: Sitting right here in Jackson, Mississippi, completely unaware of the rulings.

Because in over 7,000 decision, he is largely considered a measured jurist.

And in at least two decisions, he is not.

Hell, you probably voted for him.

I'm pretty sure I did, actually. (Note to readers: Judges on the Mississippi Court of Appeals are elected and voters generally know little, if anything, about their records.) Had I known about the two rulings in question, I wouldn't have--but I didn't. As Alan points out, Judge Southwick issued about 7,000 rulings; that's a lot of reading material, and it was not until his name came up as a possible 5th Circuit nominee that these two rulings were brought to my attention.

You, a non-lawyer, are now trying to play God by looking into 2 decisions that you have a paragraph of knowledge on and trying to assume you know (1) ALL the facts of the case

It is not necessary to know all the facts of the case in order to ascertain the precedents set by a given ruling.

and (2) what was in his heart.

What was in his heart is irrelevant to the question of whether he would make a good judge on the 5th Circuit. As I said in my previous blog entry, he may be a good man; I don't know him. But I am reminded of the quote by Friedrich Nietzsche, a man whose own legacy has been stained by racism, who once wrote that "whatever harm the wicked may do, the harm of the good is the harmfulest harm."

The issue--the only issue--is his likely performance as a judge on the 5th Circuit Court of Appeals. From a perspective of pure jurisprudence, it's better to have a bad judge on the 5th Circuit issuing helpful rulings than a good judge on the 5th Circuit issuing harmful rulings. Good judges who issue bad rulings are actually more dangerous than bad judges who issue bad rulings, because they are subjected to less scrutiny.

If I only screwed up 2 times in 7,000 cases (if he did) that is a 99.97% batting average.

If he admitted he screwed up in those two rulings, then I would probably be willing to overlook them. Since he has not, there is the very real danger that he will issue similar rulings under color of the 5th Circuit--or find himself nominated to the U.S. Supreme Court, where those rulings could become binding precedent on a national level. That is a risk we can't afford to take.

In the Richmond case, Judge Southwick speculated as to the probable motivations of a white employee who had been fired for using a racial slur, determined that her motivations were not racist, and factored that into his ruling. Today, defenders of Judge Southwick are looking at his overall character, determining that he is not a racist or homophobic judge, and factoring that into their assessment as to whether or not he should be promoted to the 5th Circuit.

Both lines of reasoning are flawed because in both cases, intent is irrelevant. The white employee in Richmond was not fired for being a racist; she was fired for using a racial slur, and an environment where white employees use racial slurs against black employees, regardless of intent, is by its very nature a hostile environment. The issue is her action, not her private beliefs. It would, in fact, be unconstitutional for the Department of Human Services to fire an employee based on her private beliefs.

Likewise, I do not oppose Judge Southwick's nomination because I believe that he is a racist and/or homophobe; I have no way of knowing what his private beliefs are, and I'm hard pressed to care. I oppose his nomination because he has issued rulings that have discriminatory consequences, has not indicated that his thinking on these matters has changed, and will therefore probably do the same on the 5th Circuit. The Democratic Senate has an obligation to prevent that from happening.

Read more:

• Local Nutroot Tom Head Piles on Leslie Southwick (mississippipolitics.com)