Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.