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Obama Judges a Judge

By George F. Will
Sunday, August 12, 2007

Sen. Barack Obama recently told some Iowa farmers that prices of their crops are not high enough, considering what grocers are charging for other stuff: "Anybody gone into Whole Foods lately and see what they charge for arugula?" Living near the University of Chicago, Obama has perhaps experienced this outrage, but Iowans, who have no Whole Foods stores, might remember 1987, when Massachusetts Gov. Michael Dukakis urged Iowa farmers to diversify by raising endive. Said a farmer to a Boston reporter, "Your governor scared me just a hair."

Obama is not scary, just disappointing. Regarding a matter more serious than vegetables -- a judicial confirmation -- he looks like just another liberal on a leash. His candidacy kindled hope that he might bring down the curtain on the long-running and intensely boring melodrama "Forever Selma," starring Jesse Jackson and Al Sharpton. It was hoped Obama would be impatient with the ritualized choreography of synthetic indignation that degrades racial discourse. He is, however, unoriginal and unjust regarding the nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit, whose jurisdiction is Louisiana, Mississippi and Texas.

Southwick, currently a law professor, joined the Army Reserve in 1992 at age 42 and transferred in 2003 to a National Guard combat unit heading to Iraq, where he served 17 months. He is 57 and until last December was a member of a Mississippi appellate court. The American Bar Association, not a nest of conservatives, has given him its highest rating ("well qualified") for the 5th Circuit.

But because he is a white Mississippian, many liberals consider him fair game for unfairness. Many say his defect is "insensitivity," an accusation invariably made when specific grievances are few and flimsy.

Obama, touching all the Democratic nominating electorate's erogenous zones, concocts a tortured statistic about Southwick's "disappointing record on cases involving consumers, employees, racial minorities, women and gays and lesbians. After reviewing his 7,000 opinions, Judge Southwick could not find one case in which he sided with a civil rights plaintiff in a non-unanimous verdict." Surely the pertinent question is whether Southwick sided with the law.

To some of Southwick's opponents, his merits are irrelevant. They simply say it is unacceptable that only one of the 17 seats on the 5th Circuit is filled with an African American, although 37 percent of Mississippians are black. This "diversity" argument suggests that courts should be considered representative institutions, like legislatures, and that the theory of categorical representation is valid: People of a particular race, ethnicity or gender can be understood and properly represented only by people of the same category.

Southwick's Senate opponents, having failed to find ammunition in any of his 985 opinions (Obama's figure of 7,000 opinions is interestingly imprecise), cite two cases in which he joined other judges' opinions. Both cases concerned the proper parameters of government agencies' discretion.

In 1998, Southwick was in the majority in a 5 to 4 ruling that upheld a state administrative agency's action in overturning a punishment imposed on a state employee. A white female social worker had been fired after referring in a meeting to a colleague, who was not there, as "a good ol' [expletive]." The court on which Southwick served ruled that the agency given broad latitude to review such discipline had not abused its discretion in deciding that the firing was disproportionate punishment, given that the woman had a hitherto unblemished record and the man, although offended, said the woman's words had caused no workplace problem. By law, the court could not overturn the agency's actions without finding legal error or "arbitrary and capricious" judgment.

In 2001, Southwick was in the majority in an 8 to 2 ruling finding no legal fault with an official's decision to transfer a child from the custody of a bisexual mother to the father. Southwick's opponents note that the opinion and a concurrence he joined contained "troubling" words such as "homosexuals" and "homosexual lifestyle." Troubling, presumably, because not using the word "gay" was insensitive. But Bill Clinton, announcing his 1993 "don't ask, don't tell" policy regarding gays in the military, used the term "homosexual lifestyles," and the U.S. Supreme Court, in its landmark 2003 decision that anti-sodomy laws are unconstitutional, spoke of a "homosexual lifestyle."

Why does Obama think Southwick should have ruled differently in the two Mississippi cases? Because he thinks Southwick applied the law inappropriately? Or because he does not like the result? Obama is seeking the office from which federal judges are nominated. Southwick has explained himself, in writings and in testimony to the Senate. Now Obama has explaining to do.

georgewill@washpost.com

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