Discrimination Double Standards

Speaking of Judge Southwick and peremptory challenges, this is interesting. Apparently he (along with a majority of his colleagues in Mississippi) is sometimes sympathetic to claims of racial discrimination. If they’re made by a white person:

Judge Southwick has participated in numerous cases involving challenges to the racial makeup of a jury under Batson v. Kentucky, in which the United States Supreme Court held that peremptory challenges to jurors cannot be used in a racially discriminatory manner. In 59 of the 70 Batson cases reviewed for this report, the defendants challenged their convictions on the ground that the prosecution had used peremptory challenges to strike African- American jurors. Judge Southwick, voting with a majority of the Court in every case, voted to uphold the convictions in all but five of these cases.

In 10 of these 70 Batson cases, the defendants challenged their convictions on the ground that the prosecution had unfairly prevented them from using their peremptory challenges to exclude white jurors (in one case the juror whom defendant sought to strike was Asian American). Defendants, with Judge Southwick again joining the majority of the Court in every case, lost all ten of these challenges. In the final case, the defendant challenged his conviction on both grounds and lost on both grounds, with Judge Southwick again in the majority.

In other words, Judge Southwick and a majority of the judges on the Court of Appeals routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants.

Again, the point here is not that Southwick is racist in his personal beliefs; I have no idea if he is. As the previous Chief Justice made clear, you can be consistently hostile to civil rights without being a bigot, and the public positions matter more than subjective beliefs. Obviously, there are probably other elements of reactionary statist judging involved here: one set of discrimination claims would benefit defendants, and one would benefit the state. And, depressingly, it is also true that creating standards that make it virtually impossible for black defendants to prove racial discrimination doesn’t make Southwick unique; it makes him an all-too-common reactionary, the kind of judge George W. Bush held up as his model (and appointed to the Supreme Court when he had the chance.) That’s the point. We don’t need more of them on the federal courts.