Bush’s Big Irony . . .

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As posted here on Feminist Law Profs, Mary Cheney and her partner Heather Poe welcomed their new son Samuel David into the world on May 23. The White House promptly issued a photo of Grandparents Vice-President Dick and Lynne Cheney nestling baby Samuel. Bridget Crawford and Amanda Kissel point out that both of Samuel’s parents are conspicuously absent from the photo. Perhaps to cushion the insult, it did identify Ms. Cheney and Ms. Poe by name in a caption.Here’s the irony. As the VP and his family enjoy the blessings of Samuel’s arrival, the Senate is scheduled next week to consider Bush nominee Leslie Southwick to fill a Fifth Circuit vacancy. But in 2001, as a member of the Mississippi Court of Appeals, Southwick joined a concurrence in S.B. v. L.W. 793 So. 2d 656 (Miss. App. Ct. 2001), arguing that women who “choose . . . the homosexual lifestyle” are less qualified for parenthood than heterosexual parents. It read:

I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual’s exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence . . in that her rights to custody of her child may be significantly impacted.

The irony doesn’t end there. The effort by Republicans to attract African-American voters includes a PR promise to make the party “more diverse than ever before.” Yet in 1998, Southwick agreed in Richmond v. Mississippi Dep’t of Human Services, 1998 Miss. App. LEXIS 637 (Miss. App. Ct. 1998), rev’d 745 So. 2d 254 (Miss. 1999), to reinstate a social worker who was discharged for referring to an African-American co-worker at a top level executive meeting as a “good ole n*****.” The state hearing officer spun the remark as something one might call a “teacher’s pet.” Ugh. But the majority, including Southwick, bought it. To them, the slur “was not motivated out of racial hatred or racial animosity directed toward a particular co-worker or toward blacks in general,” and created no workplace unrest other than offending the African-American colleague who was called a “n*****.”

Hat tip – Imus.

Two dissenters rebuked the majority for ignoring the “inherent offensive[ness]” of the slur, and for suggesting that racist remarks warrant discipline only if they trigger “a near race riot.” Southwick’s hefty record favoring business interests in employment cases makes the racial undertones of Richmond‘s worker-friendly outcome all the more salient.

There’s more. The Alliance for Justice surveyed 70 cases that came before Southwick involving Batson claims against racially discriminatory peremptory strikes. In 54 out of 59 cases involving allegations that prosecutors discriminated against African-American jurors, Southwick voted to uphold the conviction. In 10 cases, defendants alleged that prosecutors prevented them from using peremptories to exclude White jurors and an Asian-American juror. Southwick rejected the defendant’s claim in every case. Whatever his difficulty in spotting prosecutorial bias against African-American jurors, it seems to disappear when a defendant is accused of bias towards Whites.

So this is the President’s best bet to fill a Fifth Circuit vacancy – a jurisdiction that covers Texas, Louisiana and Mississippi and has the greatest percentage of non-White residents among all federal circuits. Really? Of 19 judges who sit on that court, including those on senior status, 3 identify as Hispanic, 1 is African-American. None of the 4 are women. Really? This is the nominee who reflects the Party’s mission “to better include everyone of all backgrounds” into the American fold?

A coalition of organizations paying more than lip service to that goal say Southwick is certainly not the best nominee: The NAACP, the National Gay & Lesbian Task Force, the National Council of Jewish Women, People for the American Way, the Leadership Conference on Civil Rights, the Congressional Black Caucus, Lambda Legal, Mississippi’s Magnolia Bar Association, the Human Rights Campaign, the National Gay & Lesbian Task Force, the National Employment Lawyers Association, the Society of American Law Teachers, and the Alliance for Justice. Thanks to their efforts, the Judiciary Committee yesterday postponed its meeting on the nomination. But when they gather next week, every Republican on the Committee is expected to vote in Southwick’s favor. The vote among Democrats is unclear.

Perhaps the President misses the irony of an appointment that belies even the most strained commitment to genuine family values and equality. Then again, maybe his commitment runs only as deep as the caption to a photo-op.

–Kathleen A. Bergin

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