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Obama Renominates Judge with Record of Racial Double Standards

Judge James E. Graves has demonstrated a racialist view of the First Amendment, which apparently does not worry the president.

by
Hans A. von Spakovsky

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February 3, 2011 - 12:00 am

In a further demonstration of the Obama administration’s hypocrisy on racial policy, the president recently renominated James E. Graves for a federal judgeship. Those who have followed the New Black Panther Party voter intimidation scandal at the Holder Justice Department know that his administration’s political appointees have exhibited a blatant racial double standard — they are not interested in prosecuting minority defendants for civil rights violations. Graves apparently has a similarly skewed view of race, which raises further grave concerns that such race-conscious approaches to the law are not only acceptable, but seen as worthy of lifetime appointments by those at the very top of the administration.

Graves, a black justice on the Mississippi Supreme Court, was nominated to the Fifth Circuit Court of Appeals by the president last year. His nomination died when the Senate failed to act on it before the 111th Congress ended. But Graves was one of several judges that President Obama renominated on January 5.

This despite the fact that Graves’ votes in three different disciplinary cases involving Mississippi judges show that he looks at alleged misconduct differently depending on the race of the perpetrator. While Graves strongly condemns racist and other discriminatory attitudes and language by white judges, he tolerates and finds acceptable the very same type of distasteful and sordid attitudes and language by a black judge. He apparently believes that while the First Amendment protects black judges, it has its limits when it comes to white judges.

In 2004, the Mississippi Supreme Court dismissed disciplinary proceedings against state judge Connie Glen Wilkerson, who is white. After reading an article about the extension of certain legal rights to homosexual partners, Wilkerson sent a letter to a local newspaper stating his opinion, based on his religious beliefs, that homosexuals belonged in mental institutions rather than having such laws passed on their behalf. He expounded on those views in an interview, saying that homosexuality was an illness that merited treatment, not punishment. The judge was charged with violation of judicial ethics for conduct prejudicial to the administration of justice.

The Mississippi Supreme Court justices pointed out that there “are millions of citizens who believe Judge Wilkerson’s religious views are exactly correct. There are still millions more who find his views insulting.” Regardless, a majority found that his actions were protected by the U.S. Constitution, because he had engaged in “religious and political/public issue speech,” which “occupies the ‘highest rung of the hierarchy of First Amendment values.’” Justice Graves disagreed, joining a dissent by Justice George Carlson that found that Wilkerson’s opinion was not protected speech under the First Amendment.

In 2008, the Mississippi Supreme Court held that another judge could be disciplined for statements made at a National Drug Court Institute training conference. State court judge Nicki M. Boland, who is white, was frustrated because she was not getting support from her fellow judges or county commissioners on establishing a drug court in her county. She apparently got into an angry tirade in which she said that “African-Americans in Hinds County can go to hell for all I care.”

The Mississippi court did not consider this protected speech, as it had in the Wilkerson case, because it was not religious or political speech. Instead, it was language that “was an insult to individuals in the community in which she worked as a justice court judge.” Such willful misconduct was prejudicial to the administration of justice.

Justice Graves joined a concurring opinion that not only found that Boland had no First Amendment right to engage in such speech, but that specifically reaffirmed the prior dissent in the Wilkerson case. In other words, Graves was of the opinion that the comments made by the white judges in both cases were not protected speech and should subject them to disciplinary proceedings.

But then Justice Graves seemed to suddenly have a change of heart. Less than a month after the Boland decision, the Mississippi Supreme Court decided another disciplinary proceeding against state court Judge Solomon C. Osbourne, who is black. Osbourne, while speaking to “a predominantly African-American political organization” and criticizing a white mayor and his African-American political appointees, said:

White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you don’t have your own mind and know what you’re doing, they don’t want you around.

The Mississippi Supreme Court, in an opinion written by Judge Carlson who had dissented in the Wilkerson case, also found that this statement was not protected by the First Amendment. As in Boland’s case, Osbourne’s language did not concern a political or public policy issue. His “public inflammatory, derogatory statement” on whites and blacks “in his jurisdiction is not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity.”

But Justice Graves disagreed, joining a dissenting opinion that found that Osbourne’s insulting and racially derogatory remarks were constitutionally protected speech under the First Amendment, unlike the racial insults made by Judge Nicki Boland or the criticism of legal rights for homosexuals by Judge Wilkerson.

Whether or not one agrees with the Mississippi Supreme Court’s view of the First Amendment is irrelevant to the issue concerning Justice Graves’ nomination to a federal court. A majority of the Mississippi court, not including Justice Graves, acted consistently in these three cases, finding that personal insults and racially derogatory language by two state judges was not protected speech, but opinions about a public issue such as the legal rights of homosexuals by a third judge was protected speech, whether or not one agreed with the opinion.

The only difference between the three cases is that Judges Boland and Wilkerson, who Graves thought had no First Amendment rights, were white, whereas Judge Osbourne, whose racial insults Graves believed were protected speech, was black. Contrast Graves’ behavior with that of Justice Carlson, who consistently took the position in all three cases that the judges’ language was unacceptable, whether they were black or white.

Graves has since told the Senate Judiciary Committee that he voted differently because “Osborne was a candidate for judicial election” while Boland and Wilkerson were not. But the Supreme Court has never held that you have different levels of free speech rights, depending on whether you are running for office or just giving your opinion on a religious, political, or other public policy issue. In fact, the very idea that your rights should vary depending on such circumstances should be enough to alarm anyone who believes in the First Amendment.

Graves’ views are very troubling. But President Obama’s renomination of Graves is worse. It shows that the president also apparently sees nothing wrong with such a racial double standard. That attitude should concern Americans who believe in a color-blind society that protects all of its citizens equally under the law.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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