Bench Memos

NRO’s home for judicial news and analysis.

Aron-neous Assault on Judge Southwick—Part 1


In an op-ed in today’s Washington Post, 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.)


First is the Richmond case, in which Judge Southwick joined an opinion that affirmed an administrative ruling that use of an ugly racial slur by a public employee did not justify the sanction of termination of her employment.  The narrow legal question that the majority opinion addressed was whether “there was evidence in the record to support” the administrative agency’s conclusion 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.”  Applying this deferential standard of review, Judge Southwick’s court upheld the administrative ruling.  At the same time, the opinion he joined condemned the slur, as it 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.”  On appeal, the Mississippi supreme court majority agreed with Southwick’s court that termination was not an appropriate remedy:  “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.”  (The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency “for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.”)


Here’s Aron’s summary of the Richmond case:  “Southwick affirmed the view that referring to an African American co-worker as a ‘good ole [expletive]’ was akin to using the term ‘teacher’s pet.’”  As my description above indicates, that summary utterly obscures the deferential standard of review that Southwick’s court was obligated to extend to the decision of the administrative agency.  Nothing in the opinion Southwick joined equates the racial epithet with the term “teacher’s pet.”  Indeed, that opinion expressly condemned the racial slur in terms that plainly would not apply to the phrase “teacher’s pet.”


Second is a child-custody ruling, which I discuss more fully here.  Aron claims that Judge Southwick “went out of his way to express the view that sexual orientation alone was reason enough to deny parents custody of their children.”  (Emphasis added.)  On the contrary:  The opinion that Southwick joined—which was in the context of a custody battle between the biological mother and the biological father, not (as Aron’s phrasing might suggest) a case in which the state was taking a child away from both parents—expressly repudiated the position that Aron assigns to him:  “The dissent points out that under Mississippi law sexual relations of an unmarried custodial parent cannot be the sole factor in determination of custody [between dueling parents] absent a finding that the relationship caused harm to the child.  Quite so.”  (Emphasis added; citations omitted.)  “But,” the opinion continued, “just as clearly and frequently the supreme court has stated that it can be one factor.”  (Emphasis added.)  In short, the opinion that Southwick joined faithfully applied governing precedent of a superior court.  Aron may dislike that precedent, but she cannot fairly fault Southwick (much less label him “extreme”) for abiding by it.  That’s the obligation of a lower-court judge.

Tags: Whelan


Sign up for free NRO e-mails today:

Subscribe to National Review