Whip Feinstein

How is it that John Boehner can keep virtually his entire caucus from voting for Child's Healthcare, but Harry Reid can't keep Dianne Feinstein from moving Leslie Southwick's nomination to the Senate floor?

The Congressional Black Caucus (CBC) is furious, and it's easy to see why. Southwick, you see, joined an opinion while on the Mississippi Court of Appeals holding that calling someone a "good ole nigger" was not a racial slur, and that the offending employee could not be fired--or indeed, punished in any way whatsoever--for making it. This decision was unanimously reversed by the Mississippi Supreme Court, which held that, while the employee should not have been fired, she probably should face some form of disciplinary action (umm, duh!). Personally, I think that when the Mississippi Supreme Court tells you "Slow down, cowboy. You're not adequately respecting the rights of Black people," that's a flag that we might have a problem.

Here, I want to quickly dispatch an argument made by my friend Paul Mirengoff that Southwick's ruling here was "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." That both misapplies the rule and misunderstands its purpose. The reason why isolated incidents of racial epithets or mistreatment do not create legal liability for a "hostile work environment" is to give a company or institution the opportunity to resolve these problems internally. If BigCorp employee A uses a racial slur to refer to employee B, but the company immediately responds by disciplining or firing A to show that BigCorp will not tolerate such actions, should the company be liable? I say no. I may be an anti-racism crusader, but I'm not vindictive--a company cannot control every utterance of its employees, and so long as it makes a genuine effort to insure such events do not happen (and offenders are disciplined when they do), I think they should be generally shielded from liability. However, in this case, the agency was not being sued for creating a hostile work environment--it was in court trying to take the actions that would prevent a hostile work environment from developing. In other words, it was doing precisely what the rule cited by Mr. Mirengoff anticipates they should be doing.

As such, Southwick's ruling turns the standard on its head. The liability shield Mr. Mirengoff is talking about only makes sense if the company is permitted to discipline employees who engage in the "isolated" act. If they choose not to, then they are building a record that shows they are not committed to handling these matters in-house. And in Southwick's case, he went further--his ruling stated that the agency was not permitted to discipline the employee, thus forcing them to assume the risk of creating a hostile environment. As Justice Banks noted in his concurring opinion reversing the Court of Appeals, "it is clear that DHS had an interest in terminating [the employee] because not to have taken some sort of action regarding the comment made by her, could possibly have subjected the agency to a claim of a racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond could constitute negligence." This decision should be eliciting howls from the right too--aren't they the ones that want to give businesses latitude for managing these problems for themselves?

Sadly, this is not the only eyebrow-raising aspect of Southwick's tenure. The American Constitution Society has other cases of concern, perhaps the most egregious of which was the case of S.B. v. L.W.. In that case, Southwick joined a majority opinion which held that child custody could be denied to a mother simply because she was lesbian. Southwick was the only judge to join a concurring opinion which was essentially dedicated to bashing gay people, and argued that while the mother has the "choice" to engage in such "conduct," that choice comes with "consequences," one of which is "that her rights to custody of her child may be significantly impacted."

Should Southwick's nomination have been bottled up? No. It should have been rejected outright, in committee, then never seen again. There is absolutely no justification--none--for Feinstein to vote in favor of such a radical conservative activist to a lifetime appointment to the federal bench. Now, Harry Reid needs to get his caucus in line, give Southwick the "up-or-down vote" the right is bleating about, and reject him--50-49 if necessary. The message must be sent that these radical right, out of the mainstream judges will not make it onto the bench so long as there is a Democratic Congress. That takes a scalp, and there is no nominee that deserves to go down in heavier flames than Leslie Southwick.