“High-maintenance” and “highly vocal” judges = racist?

February 14

A recent article in the ABA Journal discusses Carl Stewart, the chief judge (as of October 2012) of the Fifth Circuit, the federal appellate court that covers Texas, Louisiana, and Mississippi. Most of the article is an interesting profile of Stewart, but here’s a striking passage:

Many courts have their high-maintenance and highly vocal jurists. The 7th Circuit has Richard Posner. The 9th Circuit has Alex Kozinski. But the 5th Circuit has a plethora of Posners and Kozinskis up and down its ranks.

And as an example of this phenomenon:

When the defendant in a discrimination case opined that President Obama would replace the Statue of Liberty’s torch with “a piece of fried chicken,” a district judge in the 5th Circuit refused to interpret it as a racial slur.

The article goes on to mention other instances where Fifth Circuit judges are difficult: a controversy involving district judge John McBryde (who has been accused of being “intemperate” and “abusive”), and “the simple reality that some 5th Circuit judges do not like each other.”

But let’s focus on this first example, where the district judge refused to interpret the “fried chicken” comment as a racial slur. (You can find that on p. 8 of the appellate opinion in Autry v. Fort Bend Independent School District.) Is that an example of being “high-maintenance” and “highly vocal”? Hard to see how: the district judge was vocal in the sense that he said — in response to the claim that “fried chicken” remark reflected discriminatory animus — “That’s really surprising to Colonel Sanders.” But that doesn’t seem unusually vocal — even if, as the appellate court suggested, it “misse[d] the mark” (perhaps showing a tin ear for recognizing racial comments, if not outright racism). Nor does it show the judge to be high-maintenance, unless that’s the current euphemism the kids are using for being racist.

And in what sense again is this similar to Posner or Kozinski, neither of whom are generally thought of as racist (or for that matter, intemperate, abusive, or uncollegial)?

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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Sasha Volokh · February 14