George Will
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To some of Southwick's opponents, his merits are irrelevant. They simply say that 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 only be understood and properly represented 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 (BEG ITAL)other judges'(END ITAL) opinions. Both cases concerned the proper parameters of government agencies' discretion.

In 1998, Southwick was in the majority in a 5-4 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' n-----." 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 8-2 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 like "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 "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.

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George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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