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Slate hit piece on Leslie Southwick

Emily Bazelon's latest "conservative bad, liberal good" piece in Slate:

According to the advocacy group Alliance for Justice, Southwick voted "against the injured party and in favor of business interests" in 160 of 180 cases that gave rise to a dissent and that involved employment law and injury-based suits for damages. When one judge on a panel dissents in a case, there's an argument it could come out either way, which makes these cases a good measure of how a judge thinks when he's got some legal leeway.

Well, no. When one judge on a panel dissents in a case, it means simply that judges disagree. Not all dissents reflect honest disagreement; some, indeed too many, judges are simply lawless. It could be that there was honest disagreement; it could be that Southwick was irrational.

Or, it could be that the Mississippi judiciary, which for many years was packed with hand-picked candidates of the plaintiffs' bar to create one of the nation's most notorious judicial hellholes, had several judges that reflexively ruled in favor of trial lawyers' interests, and Southwick was the judge on the panel (in majority or dissent) upholding the rule of law.

I certainly have my suspicions from reading dozens of Mississippi cases which of these scenarios is most likely, but to be clear, I don't know for sure. But neither does Emily Bazelon or the Alliance of Justice. Simply counting doesn't tell us anything, even if we trust the Alliance for Justice to have counted correctly. (Southwick did vote for the AfJ's preferred candidate twenty times, showing that he's hardly reflexively pro-civil-defendant.) And that Bazelon singles out Southwick's defense of the concept of employment at will (the law in 49 states, and Montana's variance is hardly European) as an example of "extremism" shows how Orwellian the left has gotten in criticizing Bush's nominees.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.