Wednesday, February 09, 2011

Diversity adversity

Assuming that James Graves is sooner or later confirmed as a judge on the Fifth Circuit bench, that will leave not only a vacancy on the Mississippi Supreme Court, but an all-white Court as well. Hence the likelihood of calls for Haley Barbour to appoint a black person to replace Graves.

Seems fair enough, no? But be careful:
Are Judges “Employees” Covered by State Antidiscrimination Law?

Howard v. Kansas City (Mo. Jan. 25) says “yes,” as to state antidiscrimination law, and notes the difference of opinion among different states’ courts on the subject. Judges are not covered by federal antidiscrimination law, and it’s not clear whether the Equal Protection Clause bars discrimination in the appointment of high-level officials (a category that might well include judges).

In this case, plaintiff was awarded “$633,333 in compensatory damages and $1.5 million in punitive damages” (plus attorney fees and prejudgment interest), because the jury found that she was denied a judicial appointment because she was white ....
The question then becomes, is "Mississippi antidiscrimination law" anything more than a punch line? Haven't time to look right now, but it's a good question.

... Judges are nonstate-service personnel under Miss. Code Ann. 25-9-107. Nonstate-service employees can't be *terminated* on racial grounds, but I don't see that *hiring* (or not) is actionable. Not a subject I'm really up on, however.


  1. Obviously, Howard is distinguishable. There, the city council was presented with a slate of candidates which was rejected (despite an admission that all three candidates were qualified) because none of them was black. Haley Barbour gets to appoint Graves' replacement, and I don't think antidiscrimination laws have any effect one way or the other on his choice given that the replacement is up for reelection soon thereafter.

    What I find more interesting is the fact that the Graves nomination was pushed through so quickly when so many nominees have languished since the spring of 2009 without a vote. The bitter cynic in me wonders if Cochran and Wicker pulled some weight to ensure that this nomination sailed through in order to allow Barbour to appoint some reactionary loon who would pull our Supreme Court even further to the right.

  2. Oh, I agree there's little to no prospect for a suit re: Graves's replacement.

    The CV is that Barbour "has" to appoint someone black. I guess they're right, but given the GOP preference for "business-friendly" judges, it's odd to see Barbour's personal political advantage trump the (alleged) good of his backers.

    Malcolm Harrison in particular was a sad disappointment as a trial judge in his brief stint, and I can't see him voting much different from Graves on the appellate bench.