Bench Memos

A Tale of Two Judicial Nominees

Judicial Nominee # 1 joins an en banc appellate opinion that affirms an administrative ruling that the use of an ugly racial slur—the n-word—by a public employee did not justify the sanction of terminating her employment. Far from condoning the racial slur, the opinion clearly states 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.”

Judicial Nominee # 2 reviews the case of a police officer who was fired from his job for anonymously mailing racially bigoted materials—including printed fliers that asserted white supremacy and ridiculed black people—to police departments.  In dissent from the majority opinion, Judicial Nominee # 2 opines that the police officer’s firing violated his First Amendment rights. 

I’m not contending that the positions of Judicial Nominee # 1 and Judicial Nominee # 2 in these two cases are identical.  Among the differences:  On the one hand, the ruling that Judicial Nominee # 1 joined arose in the context of deferential review of agency action.  On the other hand, the speech that Judicial Nominee # 2 found to be protected by the First Amendment did not take place at the workplace.  My own assessment is that Judicial Nominee # 1’s ruling was clearly correct and that Judicial Nominee # 2’s opinion presents a more complicated question but may well be correct.  But the differences between the two don’t seem striking.

In case you’re wondering:

Judicial Nominee # 1 was President Bush’s Fifth Circuit nominee Leslie H. Southwick.  Based in large part on left-wing activist groups’ wild distortions of the ruling described above, then-Senator Obama was the first senator to oppose Southwick’s nomination and recklessly alleged that Southwick “has shown hostility towards civil rights and a disregard for equal rights for minorities, women, gays and lesbians” and that his nomination even “threaten[ed] the very basis of our freedom and democracy.”  (Southwick, in the end, was barely confirmed.)

Judicial Nominee # 2 is, as you’ve probably guessed, President Obama’s Supreme Court nominee, Judge Sonia Sotomayor (in Pappas v. Giuliani, 290 F.3d 143 (2002)).  Sotomayor has received the ardent support of the same left-wing activist groups that smeared Southwick.

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