Federal judge stays on case after explaining his swastika and Caucasian comments were historical

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A federal appeals court has refused to order the recusal of a federal judge who explained his comments about diversity, the swastika, Caucasians and Indian engineers in a Sept. 16 opinion (PDF).

The New Orleans-based 5th U.S. Circuit Court of Appeals denied a mandamus petition seeking the recusal of U.S. District Lynn Hughes of Houston on Thursday, Texas Lawyer reports. The petition, filed on behalf of Jitendra Shah, a U.S. citizen born in India, claimed Hughes’ remarks at a pretrial conference showed actual bias or at least raised doubts about his impartiality.

Shah, an engineer, is suing his former employer for alleged discrimination based on race and national origin.

Hughes said his remarks about the swastika were a historical reference to Hitler’s adoption of a Sanskrit word for good luck, his comment about Caucasians referenced the definition in anthropology, and his comment about Indian engineers was “a recognition of Texas’ many capable engineers with a connection to India.”

Hughes made the comments at issue during at a Nov. 26, 2012, pretrial conference that was not attended by Shah’s counsel because of her illness. According to Shah, Hughes said at the conference that Indians are “Caucasian” and “that’s why Hitler used the swastika”—that “it was a symbol of good luck” and “going back in Sanskrit to the Aryan people which he claimed a bunch of Germans were. They act a lot like Germans.”

Hughes also allegedly said:

• “Eleanor Roosevelt said staffs of one color always work better.”

• Commenting on university directory directors, “And what does the diversity director do? Go around painting students different colors so that they would think they were mixed?”

Hughes refused to recuse himself in the Sept. 16 opinion and offered his defense of the comments. He began by saying the pretrial conference was not held “ex parte” because Shah’s counsel had a chance to attend. She emailed the court less than two hours before the hearing, saying she could not attend because she had the “crud,” Hughes said. “Although Shah was not represented at the conference, that was a choice by his counsel, not the court,” Hughes wrote. “Counsel may not continue hearings by simply not attending.”

Hughes said his reference to Hitler’s use of the swastika “was a discussion—or monologue—about how a Sanskrit word for good luck became the symbol of a North-European political movement. The National Socialists of the 1930s used the swastika because of its connection to Aryan peoples who lived in Iran and northern India. The Nazis said that the Aryans—who used the swastika—were from Nordic Europe, instead of east of the Caucasus Mountains. All of this invention or delusion was an attempt to bolster their claim that Germans were a superior race descended from pure Aryans. The comment was not uncritical, it was historical. Would an uncritical reference to Hitler make one a Nazi sympathizer?”

Hughes also said his comment “they act a lot like Germans” was “a criticism of the current in German thought —Hegel is an example—that has called for a return to a mythical glory of the race when they were dominant.”

On other issues, Hughes wrote:

• “Shah says that the reference to Caucasians shows that the court does not recognize Indians as a protected class. Although Caucasian is commonly understood to mean white people, the word in anthropology refers to a cluster of peoples stretching from Europe through the Caucasus Mountains to India. The court was not confused because a few lines later it referred to Aryans synonymously with Caucasians. The categories of people evolve and flip. … A frank discussion of race is required in a case brought by a man claiming discrimination based on his race. Caucasian is the old-fashioned crude allocation of seven billion people into three groupings. Groups that broad may have minor genetic unity, but knowing that is inadequate for public decision-making. If he lost his job because of his origin, religion, or race, the law protects him.”

• “The court’s mention of Eleanor Roosevelt’s preference for staff of one race illustrates that what a person does and what a person says are not always the same. The court does not believe that a staff of one color works better together; the court has no experience with domestic staffs of more than one. The court was not approving of her racial hiring. It was a criticism.”

• “Shah says that the court’s comments about college diversity programs demonstrate an inability to follow jurisprudence on affirmative action. This case is not about affirmative action. A passing comment on bureaucratic make-work waste rather than seeking the best students says nothing about preferences under the law. Shah cannot suggest that paying a staff member in the admissions process at a university one-half a million dollars sounds reasonable. The court has routinely applied laws that it thought were wise equally with those that it thought were unwise. A judge is not required to believe that the tax code, say, consistently makes sense both to pay and apply those taxes.”

• “If an employer were to discriminate against a class of people, it is easier to never hire someone from that class than hire them and then fire them ten years later. That is the point of the court’s statement that it would be easy not to hire the first Indian person in a workplace; that is how people discriminate. When the [opposing] counsel said that it would be hard not to hire an Indian engineer, the court responded that that could be true if an employer hires based on merit. That was a recognition of Texas’ many capable engineers with a connection to India.”

Prior coverage of Judge Hughes:

ABAJournal.com: “Racism complaint filed against federal judge by civil rights group”

ABAJournal.com: “Judge who dismissed racial slur claim as ‘surprising to Colonel Sanders’ gets sensitivity lesson”

Updated on Sept. 27 to correct a misspelling in the quoted material.

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