Friday, June 5, 2009

Stuart Taylor Jr.: Recommended Reading

Southwick And Sotomayor: Judicial Nominees And Double Standards

A perennial complaint during judicial confirmation proceedings in recent decades has been that many Democrats and Republicans, liberals and conservatives, have been guilty of flagrant use of double standards.

And they have.

The most common species is partisans' tendency to attack a nominee whose ideology they dislike for actions that the same partisans would applaud, or at least defend or dismiss as irrelevant, were the nominee's ideology more to the partisans' liking.

There are dozens, if not thousands, of examples. I will confine myself here to one especially pure paradigm, with compliments to a post by conservative expert Ed Whelan on National Review Online. Whelan's post compares the treatment of Judge Sonia Sotomayor with that of a lower-court nominee about whom I wrote a column in 2007.

(Disclosure: I, too, have recently been accused -- by far-left bloggers and others -- of applying a double standard by mildly criticizing then-sophomore Sonia Sotomayor's hyperbolic attack in 1976 on Princeton University for "institutional discrimination" while giving a pass in 2005 and 2006 to then-Judge Samuel Alito for legal memos he had written 20 years before. The criticism is bogus, as explained here.

The criticism also ignores the fact that in a 2006 television appearance, I mildly criticized Alito's testimony that he did not recall his brief association with the conservative Concerned Alumni for Princeton.)

Read Whelan's post after the jump:

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.

Perhaps Whelan should also have noted that Judge Sotomayor, too, deplored (as "patently offensive") the racist language in question. But beyond that, Whelan's analogy seems apt.

I wrote my 2007 column about Judge Southwick after a disgusted Democrat brought to my attention liberal groups' dishonest savaging of the man.

Here's a passage, in which I addressed the other Southwick ruling that drew fire from Obama and others:

The second case was an 8-2 ruling in 2001 upholding a chancellor's decision to take custody of an 8-year-old girl from her bisexual mother and award custody to her father. Among the grounds cited by the court were that the mother planned to move to another city and that the heterosexual father's "average American home" was preferable to the mother's "lesbian home." Southwick also joined a concurrence stressing that the Mississippi Legislature had disfavored "homosexuals in domestic situations."

Liberal groups complained that the opinions Southwick joined had used "troubling" words such as "homosexuals" and "homosexual lifestyle" instead of "gay." Never mind that "homosexual lifestyle" was used both by President Clinton (in 1993) and by the Supreme Court (in 2003) in its biggest pro-gay-rights opinion, which all of the four more liberal justices joined.

It's fair to infer from the 2001 decision that Southwick seems less committed to equal rights for gay people than many (including me) would like. But it hardly shows him to be a homophobe. Indeed, he was deferring to a state legislative policy that was consistent with existing Supreme Court precedent.

Read the rest of my column here.