Anderson has picked up on a national law-blogger, Eugene Volokh, writing about Justice Graves and his nomination to the Fifth Circuit, focusing on three judicial performance opinions that involved whether judges could be sanctioned for speech. The point of Volokh’s post is that he thinks Justice Graves’s votes are inconsistent and proposes that Justice Graves be asked about the votes in a confirmation hearing.
Will Bardwell argues that Volokh is ignoring a clear distinction between these three cases that explains Justice Graves’s vote: that one involves absolutely clear political speech while the other two do not.
I have written about at least one of the three cases Volokh discusses, Osborne, in which a County Court judge, at a political event, said “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.” In Boland, a Justice Court judge went off into a tirade at a seminar, saying to participants ”‘You can go home because you’re not on this team anymore.’ Judge Boland also stated that ‘[a]nd you African-Americans — all you African-Americans can go to hell.’” In the first of the three cases, Wilkerson, a Justice Court judge stated in a letter to the editor and then on statewide public radio that gays and lesbians should be in mental hospitals.
Justice Graves did not write in any of these cases. In Wilkerson, he joined Justice Carlson’s opinion that the speech was sanctionable; Justice Dickinson dissented on First Amendment grounds. In Boland, there were no dissents and Justice Graves joined in the result (that the speech was sanctionable) but concurred in the result only in Justice Easley’s opinion, and then partially agreed with a short concurrence with Justice Carlson. I’m only guessing, but it appears Justice Graves agreed with Justice Carlson’s statement that Wilkerson controlled but would not go along with Justice Carlson’s expressed complete agreement with the Easley opinion. While it’s not clearly expressed in the opinion, the result in Boland seems driven by the fact that the words were spoken when the judge was acting as a judge.
In Osborne, Justice Carlson found the speech sanctionable, and Justices Kitchens and Dickinson dissented on First Amendment grounds. Justice Graves joined Justice Dickinson in full and Justice Kitchens in part. I have no guess whatsoever that might explain the partial joinder with Justice Kitchens, and, once again, there is no explanation for it.
As regular readers know, I am consistently bothered by these unexplained votes in cases.
Will Bardwell has an excellent explanation of the leading United States Supreme Court case (and the three Mississippi cases), then makes a run at explaining how the three Mississippi cases might be distinct:
Judges Wilkerson and Boland, to whom Justice Graves ascribed no First Amendment protection, made their statements rather spontaneously and altogether outside the sphere of political campaigns. But Judge Osborne, to whose speech Justice Graves would have granted First Amendment protection, made his remarks before the Greenwood Voters League — and, I believe, in an election year to boot.
Will makes clear that he thinks that the United States Supreme Court’s protection of political speech by judges goes farther than suggested by this distinction, but finds it a legitimate distinction. He therefore takes great exception to Volokh’s insinuations that this all comes down to race.
Of course, like me, Will is forced to guess about these distinctions, because Justice Graves did not write to explain them.
So– what do I think? I suspect Will is right that this is at least a try-out of an attack on Justice Graves’s nomination, and I agree with his rejection of the insinuating tone of Volokh’s post. But I’m not really buying that a letter to the editor about an issue of public debate is a “spontaneous” pronouncement clearly distinct from a speech at a political gathering. I don’t see how one can avoid saying they are both protected, or can say one is and one isn’t.
There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties: Expressing aloud what one thinks is a great way of testing whether one is right. I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.
If this is indeed Justice Graves’ view of Republican Party v. White, then the one thing you have to give him is that he has applied that interpretation consistently. And that’s a lot more than you can say for the Court’s majority. Osborne III is altogether irreconcilable with Wilkerson.
If the Judiclal Code and the comments thereto are strictly interpreted, none of the judicial statements in the three cases referenced should be considered “protected speech”.
The First Amendment trumps the Judicial Code, gottabe.
In theory, at least.
Off topic, but I bet they ask him about presiding over the Loewen Group case. It may be his albatross.
Ahhh, the Lowen trial. That one is interesting. Some internationl tribunal found that Lowen did not receive a fair trial and hammered Graves. But, the Bush Justice Dept did a subsequent investigation and concluded Graves did nothing improper. I think all of this was in a New Yorker article.
I would certainly expect the Loewen case to be mentioned in any decent confirmation hearing.
(Wikipedia’s article on “funeral homes” baldly states that the allegations against Loewen “were proved false,” which is rather a stretch — at most, I think there were some questions of jury bias due to alleged misconduct by Allred etc. Oddly, one thing Wikipedia does not have is an article on the case itself.)
… Here btw is a fascinating DOJ brief in the NAFTA arbitration.
The arbitrators apparently bought the claims of an unfair trial but bounced Loewen on procedural grounds.
OK, sorry, I can’t get “click to edit” to work, so I’ll post one more on Loewen and then stop. Here is the State Dep’t page on the case, including a link to the “Award” (= no award).
Having regard to the history of the trial, and the way in which it was conducted by Judge Graves, we do not consider that failures to object on the part of Loewen’s counsel amounted to a waiver of the grounds on which Claimants now contend that the conduct of the trial constituted a violation of NAFTA. There was a gross failure on the part of the trial judge to afford the due process due to Loewen in protecting it from the tactics employed by O’Keefe and its counsel. * * *
By any standard of measurement, the trial involving O’Keefe and Loewen was a disgrace. By any standard of review, the tactics of O’Keefe’s lawyers, particularly Mr Gary, were impermissible. By any standard of evaluation, the trial judge failed to afford Loewen the process that was due. * * *
Claimants’ argument that Judge Graves and the jury were actually biased against Loewen is not made out. There is no direct evidence of bias on the part of Judge Graves or the jury. * * * Although the trial judge’s conduct of the trial is explicable by reference to bias, the evidence does not support a finding that he was biased against Loewen. We take the view that the judge, for reasons which do not clearly appear, failed to discharge his paramount duty to ensure that Loewen received a fair trial.
Those would be some good passages to ask Graves about.
This is so interesting, not from the legal/appeal/mismanagement-of-case-by-a-judge point of view but that O’Keefe pulled a fast one and while almost broke at the time, managed to get Loewen’s money in a most talked about jury case and thus send Loewen into financial chaos. Shortly after this O’Keefe was the object of an indictment in Pensacola but word on the street was he bragged he spent $100,000 getting an opinion from the old law Miami law firm of Janet Reno and word came down from DOJ to Un-indict the bastard but to list him as an Unindicted co-conspirator. Unfortunately he took the Fifth at trial and O’Keefe, that creep, let two innocent people go to prison for four years when one word from him could have clarified the situation. Since then he has tried to clean his skirts to no avail. But I understand he doesn’t sleep well.
I understand that the Constitution trumps the Code, normally, but my question is whether judges give up certain Constitutional rights by taking the bench. The case law on many aspects of free speech, spoken or through behaviour, suggests that judges agree to abide by the Judicial Code when seeking or holding a judicial office. For instance, the prohibition of openly supporting certain political candidates, attending political events or volentarily testifying on the behalf of a litigant in a judicial proceding.
Thank you for bringing these cases to my attention. I was wondering what pretextual reason the Republicans would give for blocking Judge Graves’ nomination for the next year or so, since they don’t have the guts to admit their true motivation — i.e. that they believe that Obama, like all Democratic presidents, is per se illegitimate and should be undermined to the point of borderline treason at every opportunity.
Since I happen to think Graves a very poor choice for the Fifth Circuit, I wonder whether that makes me a borderline traitor, pretextual, or just gutless?
And I’m a Democrat!
If Justice Graves is genuinely unfit for the Fifth Circuit, then I would hope that after a fair hearing on the merits he would be voted down by the full Senate. (Although I do wonder what it takes to be “unfit” for the Fifth Circuit — one of the current sitting judges there refused to recuse herself from a case in which she had a significant stock investment in the company making the appeal, and no one on the Right ever said boo about it at her confirmation hearing).
What I expect to happen, given the fact that the Republicans have destroyed Senate comity as part of their ongoing scheme to undermine President Obama at every turn, is that Justice Graves’ nomination will sit in limbo for a year or so while Republicans subject him to a whisper campaign designed to make people think he’s a communist Muslim abortion-doctor in disguise.
Can you name someone to the left of Mike Mills who Obama could possibly nominate to the Fifth Circuit right now without the Republicans filibustering the nomination? For that matter, if Obama nominated Judge Mills, a Bush appointee and former Republican state senator, could he get confirmed quickly and easily to the Fifth Circuit? Or would Republican Senators point to the Hodges case that we were discussing just last week as proof that Judge Mills is “soft on crime” and a “judicial activist” who was nominated by Obama to advance his “dangerous liberal agenda.”
It seems that Washington types immediately turn to race whenever they look at a Southerner. If you’re white then they assume you don’t like blacks, and it appears if you’re black they assume you don’t like whites. While my politics are very different from those of Justice Graves, I know he has been involved in racial reconciliation efforts and have never heard it suggested he was anything but sincere in those efforts. In the hand full of brief of meetings and conversations (and by brief, I mean I doubt he would even recall them) I’ve had with him he has been nothing but gracious and kind. Maybe he should answer questions regarding those rulings, but I think it is inaccurate to suggest race was any motivation in them. I suspect his hearing will be relatively smooth and he will be confirmed with a number of other nominees after November.
[...] behind the votes. Another friend and fellow blogger, Tom Freeland (NMissCommentor), has also posted a detailed discussion about the [...]