Bench Memos

NRO’s home for judicial news and analysis.

Board Crazy?


I’ve learned from How Appealing that the editorial board of the New York Times has just launched its own blog, The Board.  Let’s examine The Board’s initial post, which criticizes Senator Feinstein for her committee vote in favor of the nomination of Judge Leslie Southwick to the Fifth Circuit.


The Board’s central assertion is that Judge Southwick’s record “includes decisions that have been labeled anti-black and anti-gay.”  Well, it’s certainly true that the New York Times and others on the Left have so labeled the decisions, but, as I have shown time and again (see this essay for an overview), those labels are grossly unfair.  Judge Southwick properly applied governing law and applicable precedent in the decisions at issue, and I haven’t seen anyone go beyond flinging epithets to present a serious argument that his reasoning was legally defective.


Contending (without citing any supporting evidence or alleged legal error) that Judge Southwick “is strongly pro-business, and generally rules against employees,” The Board snidely states:


But he found an employee to rule for when a white Mississippi social worker was fired for calling a black colleague “a good ole nigger.” He accepted the white worker’s claim that her use of the slur was “not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.”


In fact, neither Southwick nor the en banc majority opinion of the Mississippi court of appeals that he joined “accepted the white worker’s claim that her use of the slur was ‘not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.’”  Southwick’s court was reviewing the decision of a state administrative agency that the white worker’s use of the racial epithet did not justify termination of her employment.  The narrow, and highly deferential, legal question before the court was whether, under its “limited scope of review,” there was substantial evidence in the record to support the agency’s decision.  The majority concluded there was, and, on review, the state supreme court majority agreed with Southwick’s court that termination was not an appropriate remedy.  Further, the opinion that Southwick joined, far from condoning the racial slur, expressly stated that 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.”  So much for an “anti-black” decision.  (For more evidence refuting the baseless—and therefore vile—insinuation that Judge Southwick is racist, see here and point 1 here).


Let’s turn to the supposedly “anti-gay” decision, which the Board calls “Judge Southwick’s horrendous child custody ruling, which showed a clear animosity toward gay people.”  The Board states: 


Judge Southwick also joined another decision taking a child away from a mother because she was bisexual. Adding insult to injury in that case, he signed a concurring opinion that attacked the mother for her “decision to participate in a homosexual relationship” and told her that losing her baby was one of the possible consequences of her “exertion of her perceived right.”


Now for the facts:  Southwick’s court was reviewing the lower court’s decision to award custody of a child to the child’s father.  The majority opinion that Southwick joined applied binding Mississipi supreme court precedent in ruling that it was proper for the lower court to consider the mother’s lesbianism as a factor in the child-custody determination.  The concurring opinion of Judge Payne that Southwick also joined did not “attack[]” the mother in any respect.  Rather, Judge Payne responded to an argument made in the dissenting opinion:  “I write separately because I feel the dissent has delved into an area where our State legislature has made clear its public policy position relating to particular rights of homosexuals in domestic relations settings.”  The particular quotes that the Board somehow finds so offensive provide a neutral and accurate statement of how “the legislature’s unambiguous rules [interact] with our established case law rules.”  So much for “anti-gay” animus.  (See here for more details on this case.  Also, the good folks at ConfirmThem have posted the contested opinions here.)


The Board contends that Judge Southwick “is just the sort of Bush judicial nominee everyone thought would be blocked when Democrats retook the Senate.”  Even by the Times’s standards, that’s rather brazen revisionist history.  Judge Southwick was instead just the sort of consensus nominee that Senate Democrats were calling for.  The Senate Judiciary Committee had already previously approved him for a district-court seat, and the ABA unanimously gave him its highest “well qualified” rating for the Fifth Circuit spot.  No one anticipated any controversy over the nomination until the Left launched its baseless smear attacks on the eve of the confirmation hearing.


Not surprisingly, The Board has demonstrated in its inaugural post the same combination of mendacity, obtuseness, and bias (though it’s sometimes difficult to parse the contributions of each) that mark the Times’s house editorials. 

Tags: Whelan


Subscribe to National Review