Bench Memos

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Durbin’s Lies About Judge Southwick


Earlier today, Senator Dick Durbin offered his thoughts on the nomination of Leslie Southwick to the Fifth Circuit.  Unfortunately, Durbin met his usual low standard for mendacity and smarminess. 


Durbin’s primary piece of supposed evidence against Southwick is the majority opinion that he joined in Richmond v. Mississippi Department of Human Services.  That opinion, as I have previously explained, affirmed an administrative ruling that an ugly racial slur—the n-word—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, Southwick’s court upheld the administrative ruling.


Durbin somehow thinks that Southwick’s decision to join the majority opinion plausibly supports an inference that he would not be fair in cases involving civil rights.  But the inference is so outlandish that Durbin must try to support it with lies and distortions:


1.  Durbin claims that the Mississippi supreme court “unanimously reversed the majority opinion which Judge Southwick had signed his name to.”  But the ruling of the state supreme court was not unanimous.  Rather, that court divided 4 to 3, with the majority agreeing 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.”)


2.  Durbin contends that the opinion Southwick joined  “stated that the white employee … ‘was not motivated out of racial hatred or racial animosity directed toward a particular co-worker or toward blacks in general.’”  In fact, the actual quote that Durbin attributes to the majority opinion was in that opinion’s narrative summary of the evidence offered by the employee.  All that the majority found, under its “limited scope of review,” was that there was some evidence to support the administrative agency’s determination that the employee’s remark did not warrant her termination.


3.  Durbin charges that for Southwick to join an opinion that is “so dismissive of this term [the n-word] is truly to be insensitive.”  But the opinion was not dismissive of the ugly epithet.  On the contrary, 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.”  (Do Durbin and others on the Left really not understand that it is one thing to condemn—and punish—the use of ugly racial epithets in the workplace and quite another to require as a rule of law that the punishment must always be termination of employment?  I ask again whether that is really a rule that the Left would want to apply to every use of the n-word, as—if popular culture is any indication—such a rule would seem likely to have a sharply negative disparate impact on black employees.)

Tags: Whelan


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