Hans von Spakovsky is no stranger to race-baiting. He is most often seen these days hyping the trumped-up charges that the Justice Department mishandled a voter intimidation case and alleging that the President Obama's Justice Department has a policy of not enforcing voting rights laws in a race-neutral fashion. Yesterday, he took his attacks a step further, essentially accusing Obama judicial nominee James Graves of engaging in racism in favor of African Americans in his judicial decision-making.
His attack is highly dubious in light of the fact that his target is a Mississippi Supreme Court judge who was elected to his position in 2004 (after initially being appointed to the seat in 2001), has the strong support of both of Mississippi's Republican senators, and who received the support of the Senate Judiciary Committee without dissent after a committee member asked him about the cases in question.
In a Pajamas Media post entitled "Obama Renominates Judge with Record of Racial Double Standards," von Spakovsky claims:
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.
The three cases involved judicial misconduct cases brought against judges who made derogatory statements about groups of individuals. One of the white judges suggested in a letter to a newspaper that homosexuality was a mental disorder. The other white judge said at a judicial conference "all you African-Americans can go to hell." The black judge said during a campaign speech that "white folks don't praise you unless you're a damn fool. Unless they can use you."
The judges all claimed that disciplining them would infringe on their First Amendment rights. And Graves voted to discipline the two white judges but not to discipline the black judge.
In response to written questions from Sen. Jeff Sessions (R-AL) last fall, Graves said he treated the cases differently because the black judge's case involved campaign speech, and is governed by a different U.S. Supreme Court case than the others:
Judge Osborne was a candidate for judicial election and his speech was clearly protected under Republican Party of Minnesota v. White, 536 U.S. 765, 794, 122 S. Ct. 2528, 153 L.Ed.2d 694 (2002). Neither Judge Boland nor Judge Wilkerson was a candidate for judicial election at the time their remarks were made.
Von Spakovsky rejected Graves' explanation, saying:
[T]he 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.
Maybe Graves got the law right or got the law wrong. I'm not a First Amendment scholar. But I will point out that even if it was wrong to treat the black judge's speech as specially protected because it came in the election context, it's not utterly baseless to view such speech as different.
In the case Graves cited, Republican Party v. White, Justice Antonin Scalia described speech about a candidate's qualification for office as "at the core of our First Amendment freedoms," and in the controversial Citizens United v. FEC, the conservative majority said that the First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for public office."
But whatever the correct answer, it seems unlikely to the point of absurdity that, despite this purported record of racial discrimination, Graves has received the support Mississippi Republican Senators Thad Cochrane and Roger Wicker and did not receive any opposition from any of the eight Republican Senate Judiciary Committee members.
More likely is that von Spakovsky is engaging in yet another baseless, racially-charged attack.