How many racist e-mails does one have to send out before it proves one is a racist? At Above the Law, legal affairs blogger Ellie Mystal says the answer is one, and I agree. Mystal writes:
“If you send one horribly racist email that actually manages to leak out into public discourse, it’s probably not your only one. Seeing a racist email from someone is like seeing a mouse in your apartment: there’s never just one. I believe in temporary insanity, but I don’t believe in sudden onset racism that magically appears once and only once and then disappears forever. Of course, whenever anybody gets caught in a racist email scandal, they always say that it’s the only one. It’s always “Whoops, that email was racist, but I’m not racist.” The racist email is always allegedly “out of character,” and the person always claims to have shown “poor judgment.” And that person always has some apologists, as if sending one or two racist emails is just something that “happens” in the normal course of business to non-racist people.”
The “out of character” nonsense is what Ethics Alarms refers to as the “Pazuzu Excuse,” as when someone explains that his or her full-throated expression of a vile nature “just wasn’t me” and “doesn’t express how I feel,” as if their being was suddenly possessed by the evil demon that made Linda Blair spit pea soup in “The Exorcist.” People try that excuse—and absurdly often are allowed to get away with it—because, at their core, they realize that signature significance is persuasive when judging character. Non-racists simply don’t send out racist e-mails ever, even once, and one such episode, all by itself, is convincing evidence that the sender is, in fact, a racist.
The racist under discussion by Mystal was retired federal judge Richard F. Cebull, appointed chief judge for the District of Montana by President George W. Bush in 2001. In 2012, Cebull got in trouble when he sent the following e-mail to seven acquaintances:
“Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine. “A little boy said to his mother; ‘Mommy, how come I’m black and you’re white?’” the email joke reads. “His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!’”
The inevitable chain of forwards brought the email to the media’s attention (sending such an e-mail also has signature significance in showing that any sender in a public position is a reckless, technologically-naive boob with self-destructive tendencies), and Cebull apologized, saying that he had circulated the “joke” because “I am not a fan of our president” (ya think?), and further…
“This is a private thing that was, to say the least, very poor judgment on my part. I did not forward it because of the racist nature of it. Although it is racist, I’m not that way, never have been….I have never considered myself that way. All I can emphasize is I’ve treated people in my courtroom all these years fairly. I don’t think I’ve ever demonstrated racism. Nobody has ever even implied it.”
Judge Cebull voluntarily registered an ethics complaint on himself, thus triggering an investigation by the Ninth Circuit. This was both smart and correct, and, I suspect, what allowed him to make his way to retirement last April without too much additional public flack. He also personally and officially apologized to President Obama.
I should note that if I received such an e-mail from a judge, even if he were a friend, I would consider myself ethically obligated to file an ethics complaint against him. A lawyer must do this when he knows that a judge (or lawyer) has engaged in conduct that the lawyer believes calls into serious question the judge’s integrity, character and fitness to sit on the bench, and a signature significance racist e-mail would be a sufficient trigger for me. A judge can say, as Cebull did in his statement above, that he has always treated people fairly regardless of race, but I don’t believe that a racial bias strong enough to warp a judge’s judgement to the point that he wouldn’t regard such a joke as inappropriate to be sent out under the name of a federal judge, acting on behalf of a nation dedicated to human respect and dignity, can be overcome….at least not with sufficient certainty to justify the public trust. Racist judges are not fit to judge, and non-racist judges don’t send e-mails like that.
…As the Ninth Circuit’s investigation showed, once again validating signature significance. The results of the investigation in 2012 were kept private until now; they should not have been, but judges are notoriously protective of each other, even the bad apples. The San Francisco Chronicle reports:
“The Ninth Circuit Judicial Council said a subsequent search of court computer tapes dating from 2008 found hundreds of disparaging e-mails sent by Cebull to “personal and professional contacts and court staff.” Many messages were political and expressed “disdain and disapproval for liberal political leaders” or commented on legislation on topics like gun control and civil rights, the report said. It said a significant number included jokes or commentary disparaging African-Americans, Native Americans, Latinos – especially illegal immigrants – and women, and a few were antigay. The report did not quote any of the offending e-mails. The council said a review of Cebull’s cases, and interviews with Montana lawyers, found no evidence of judicial bias, although the report conceded that some attorneys might be reluctant to criticize a sitting judge, even anonymously. The council said Cebull had done nothing illegal that would justify his impeachment but reprimanded him for actions that undermined “public trust and confidence in the judiciary.”
A council majority voted to bar him from receiving new cases for 180 days and order him to undergo training in ethics and racial awareness. Two council members…voted to go further and ask Cebull to retire, “in recognition of the severity of his violations and the breadth of the public reaction.”
So it wasn’t Pazuzu who sent the e-mail. It was a racist, bigoted judge, and as signature significance should have told everyone at the time, it only took one e-mail to prove it.
Pointer and Source: Above the Law1
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