Last night, I wrote about the scurrilous attack by Senator Durbin and other Senate Dems against Judge Leslie Southwick, the president’s nominee for the Fifth Circuit Court of Appeals. The main attack consists of the claim that Judge Southwick is racist or racially insensitive. As I pointed out, though, those best in a position to know whether this is so, including two African-American former law clerks, vigorously disagree with the allegation.
Durbin’s attack centers on a decision in which Judge Southwick joined with the majority of his court to affirm, under a “limited scope of review,” an administrative ruling that the use of the n-word by a public employee on one occasion did not justify that employee’s firing. The opinion Southwick joined clearly stated that the employee’s conduct “cannot be justified by any argument.” However, the opinion rejected “an arbitrary, across-the-board rule” that use of the n-word (or of any other racial epithet) is always “so inflammatory or disruptive that it warrants the ultimate sanction of loss of employment.”
This view is consistent with well-established federal law under which one instance of using a racial or sexual epithet generally does not create a hostile work environment and thus does not constitute racial or sexual harassment. A rule disqualifying from elevation judges who have expressed that view would rule out most judges who have opined on the subject. Yet, if one were prepared to engage in cheap grandstanding and personal attacks, one could call this rule “racially insenstive.”
The two liberal organizations that are fueling the attack on Judge Southwick, The Human Rights Campaign and People for the American Way, claim that the Mississippi Supreme Court unanimously reversed the decision Southwick joined. However, as Ed Whelan points out, the majority of the state supreme court actually agreed with Southwick and others that “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 court altered the judgment only to the extent that 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.”
In short, the case that Judge Southwick is a racist or racially insenstive turns out to rest on distortions and and lies. But this is another day at the office for Senator Durbin and many others in the Democratic caucus who are prepared to engage in, and seem to relish, this sort of slander to promote their leftist agenda.
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