[Congressional Record Volume 153, Number 117 (Friday, July 20, 2007)]
[Senate]
[Pages S9655-S9658]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDICIAL NOMINATIONS
Mr. REID. Mr. President, I came to the floor a month or two ago and
indicated at that time that I had had conversations with my
counterpart, the distinguished Senator from Kentucky, Mr. McConnell. I
related to the Senate that Senator McConnell had said to me that
judicial nominations were very important to him. I said if that is the
case, then they are important to me, and that I would do everything I
could to expedite judicial nominations in spite of what had gone on in
recent years relative to how Republicans had treated Democratic
nominees of President Clinton.
As the majority leader, I take very seriously the Senate's
constitutional duty to provide advice and consent with regard to all
Presidential nominees, but especially judicial nominees. The judiciary
is the third branch of our Federal Government and is entitled to great
respect. The Senate shares a responsibility with the President to
ensure that the judiciary is staffed with men and women who possess
outstanding legal skills, suitable temperament, and the highest ethical
standing.
In a floor statement I have given on more than one occasion--I just
recounted one I gave--I expressed regret that the process for
confirming judicial nominees had become too partisan in recent years.
From 1995 to 2000, the Republican-controlled Senate treated President
Clinton and his judicial nominees with great disrespect, leaving almost
70 nominees languishing in the Judiciary Committee without even a
hearing. Some of them were there for 4 years with nothing happening. Of
course, Republicans have had their complaints--most of which I feel are
unjustified, but they are entitled to their opinion--about the way a
handful of nominees were treated in the early years of the Bush
administration.
The partisan squabbling over judicial nominees reached a low point
last Congress when Majority Leader Frist threatened to use the so-
called nuclear option, an illegitimate parliamentary maneuver that
would have changed Senate rules in a way to limit debate on judicial
nominations. It would have had long-term negative ramifications for
this body. At the time I said that it was the most serious issue I had
worked on in my entire time in Government, that the Republicans would
even consider changing the rules so the Senate would become basically
the House of Representatives. The Founding Fathers set up a bicameral
legislature. The Senate has always been different from the House. That
is what the Founding Fathers envisioned. That is the way it should
continue. But the so-called nuclear option would have changed that
forever.
The effort was averted by a bipartisan group of Senators that was
unwilling to compromise the traditions of the Senate for momentary
political advantage. I was never prouder of the Senate than when it
turned back this misguided attempt to diminish the constitutional role
of the Senate just to confirm a few more judges. I believed that had a
vote taken place, that never would have happened. There were people who
stepped forward. I had a number of Republicans come to me and say: I
will not say anything publicly, but what is being attempted here is
wrong. But remember, we only had 45 Democrats at the time, so we had to
be very careful what would happen. Rather than take the chance on a
vote, I was so happy that we had 14 Senators, 7 Republicans and 7
Democrats, who stepped in and said: That is not the way it should be.
We were able to negotiate. As a result of that negotiation, we let some
judges go that with up-or-down votes here, it wouldn't have happened.
But it didn't work out that way.
We averted the showdown as a result of the goodwill of 14 Democratic
and Republican Senators. It went away. That is the way it should have
gone away.
But in the 2 years since the nuclear option fizzled, I have worked
hard, first with Senator Frist and now with Senator McConnell, to keep
the process for considering judicial nominees on track. I said then
that if the nuclear option had been initiated, and I became leader, I
would reverse it. I believed so strongly it was wrong, even though we
would have had an advantage at the time.
As Senate leaders, we have worked hand in hand with the very able
leaders of the Judiciary Committee, Senators Leahy and Specter. In the
last Congress the Senate considered two Supreme Court nominees--I
opposed both--Roberts and Alito. In hindsight, I did the right thing
with the decisions they have made. But I worked with Senators Leahy and
Specter to make sure both nominees received prompt, fair, and thorough
consideration in the committee and on the Senate floor.
After Senate Democrats gained a majority in last November's
elections, I publicly pledged that the Senate would continue to process
judicial nominees in due course and in good faith. I explained that I
could not commit to a specific number of confirmations because the
right way to measure the success of this process is the quality of the
nominees, rather than the quantity of nominees and, ultimately, judges.
I said the Senate will work hard to confirm mainstream, capable,
experienced nominees who are the product of bipartisan cooperation.
President Bush made a wise decision at the beginning of this Congress
by not resubmitting a number of controversial judicial nominations from
previous years. I took that as a sign of good faith and have tried to
reciprocate by working with Chairman Leahy to confirm noncontroversial
nominees in an expeditious fashion.
So far this year we have confirmed three court of appeals nominees.
Again in hindsight, that is three more than were confirmed in a similar
year in the last Clinton term. But we have confirmed three, including a
nomination to the Ninth Circuit about which there was some dispute as
to whether the seat should be filled by a Californian or someone from
Idaho. We have also confirmed 22 district court nominees, and we
continue to vote on those at a steady pace.
The judicial confirmation process is working well. We have confirmed
25 judges. It is certainly working much better than it worked when
there was a Republican Senate processing President Clinton's nominees.
As a result, the judicial vacancy rate is at an all-time low. I have
said on the floor and
[[Page S9656]]
publicly, this is not payback time with judges. We are going to treat
the Republican nominees differently than they treated our nominees.
But all of this hard work cannot prevent good-faith disagreements
about the merits of particular nominations. There is one nomination
pending in the Judiciary Committee that has aroused significant
controversy, the nomination of former Mississippi State Judge Leslie
Southwick to the Fifth Circuit Court of Appeals. Senator Specter
recently said that I told Senator McConnell that Judge Southwick would
be confirmed by Memorial Day. Obviously, I can only commit to my own
actions, not the actions of others. But I did urge strongly that the
Judiciary Committee hold hearings on this, and they did. I urged
strongly that this matter be moved as expeditiously as possible, and it
has. I urged the Judiciary Committee to do everything it could to move
this along, and they did. The problem was, the nomination proved to be
controversial and, therefore, it has not moved forward.
The Judiciary Committee has not yet voted on Judge Southwick. But as
reported in the press, some Republicans are already threatening to
retaliate against the rejection of the Southwick nomination by slowing
down Senate business. How much more could they slow it down? What has
gone on this year is untoward. Cloture has been filed about 45 times on
things that, really, I don't understand why they are doing what they
do. To threaten, because of the Southwick nomination, that they are
going to slow things down is absurd because they have already slowed
things down. They were gearing up to oppose judicial nominees of future
Democratic Presidents. That is what they have said. This is so
senseless. I think the reaction would be completely unjustified.
My pledge that the Democratic majority would consider judicial
nominees in due course and in good faith was hardly a guarantee that
every Bush nominee would be confirmed. I was told early on that Judge
Southwick was noncontroversial. He had a high rating from the ABA. He
had participated in lots of cases. There was no problem. I accepted
those representations and, after having accepted them, pushed very hard
to move this nomination along. But the facts of his background and his
decisionmaking are different than had been represented to me. The
Judiciary Committee must still do its work with care, and it should
only report those nominees who deserve a lifetime appointment to the
Federal bench.
The nomination of Judge Southwick has already been treated more
kindly than dozens of Clinton nominees, including nominees to the Fifth
Circuit. We have held a hearing. I repeat, during the Clinton
administration, almost 70 languished with no hearings. If Southwick has
been unable to convince Judiciary Committee members of suitability for
the Federal bench, that is his misfortune. Remember, about 70
nominations of President Clinton never even had a hearing. Southwick
has had a hearing, and to this point, he has been unable to convince
the Judiciary Committee he is the person for the job. Senator Leahy has
stated that anytime Senators Lott and Cochran ask him to put him on the
calendar for a vote, he will do so. They haven't asked him to do that
yet. Why? Because at this stage it appears Democrats are going to
oppose this nomination. But Senator Leahy said anytime they want to
test the vote, they may do that.
I know the administration has sent Judge Southwick around to meet
individually with Democratic Judiciary Committee members. Anytime they
want that vote, they can have it. Chairman Leahy and I can only
establish a process. We can't promise that the outcome of that process
will be to the liking of Republican Senators.
The primary concern that has been raised by Judge Southwick is that
he has joined decisions on the Mississippi Appellate Court which
demonstrate insensitivity to the rights of racial minorities and
others. For example, in the Richmond case, he voted to uphold the
reinstatement, with back pay, of a White State employee who used a
racial epithet about an African-American coworker.
I ask unanimous consent that the dissent in that opinion by Judge
King be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Bonnie Richmond, Appellant v. Mississippi Department of Human Services,
Appellee
no. 96-cc-00667 coa
court of appeals of mississippi
1998 miss. app. lexis 637, august 4, 1998, Decided
I dissent from the majority opinion.
The standard of review applied [*19] to administrative
decisions is that they must be affirmed if (1) not arbitrary
or capricious, (2) supported by substantial evidence and (3)
not contrary to law. Brinston v. Public Employees' Retirement
System, 706 So. 2d 258, 259 (Miss. 1998).
In this case, the Mississippi Employee Appeals Board,
(hereinafter referred to as ``EAB'') made no specific
findings of fact. Instead, it merely entered an order which
affirmed ``the Order of November 29, 1994'' \1\, entered by
the Hearing Officer Falton O. Mason, Jr. Because the EAB made
no findings of its own, we can only conclude that it
incorporated by reference and adopted the findings and order
of the hearing officer. It is therefore the findings and
opinion of the hearing officer which we subject to our
review.
\1\ The hearing officer's order read as follows:
This came on to be heard on November 16, 1994, at 9:30 a.m.
in the Supervisors Board Room, in the Desoto County
Courthouse, Hernando, Mississippi, Falton O. Mason, Jr.,
Hearing Officer;
After receiving testimony and hearing argument of counsel,
the Court being fully advised in the premises finds:
Bonnie Richmond appealed her termination by the Mississippi
Department of Human Services (hereafter MDHS), for an alleged
racial statement made in a private meeting, and later made to
the individual after she returned to the DeSoto County
Office. The proof shows that she made the alleged
statement in a private meeting where the atmosphere and
setting were for the free flow of comments and ideas and
complaints, her statement was in effect calling the
individual a ``teachers pet'' and that she did not repeat
that statement, but did in fact apologize to that
individual and that individual did in fact accept the
apology.
That based upon the allegations set out in the termination
letter, the Appealing Party did in fact sustain her burden of
proof, and the Appealing Party is reinstated as of July 8,
1994, with back pay and all benefits restored.
SO ORDERED this the 29th day of November, 1994.
[*20] To facilitate that review, I have included at this
juncture the full text of the Hearing Officer's opinion,
which reads,
I think in my--it appears to me very simply that the
department overreacted on this because first I don't find if,
in fact, these employees, Bonnie Richmond and Renee Elmore,
were in a meeting with Ms. Johnson and Mr. Everett and Ms.
Johnson testified that she tried to make them comfortable and
relaxed, if it was an open meeting with a give and take
atmosphere and this comment was made in the context it was
made in, I don't think it was intended at that time for a
racial slur.
If the department--if that's correct, if the department
takes that as a racial slur, then I see anytime somebody
refers to somebody as a honkie or a redneck or a mick or
chubby or a good old boy or anything else, it's an action to
file an appeal and try to get some response. I think it
overreacted.
I do think it would be unprofessional and it is
unprofessional to make that remark. I wouldn't be comfortable
making it. At the same time, it depends on what company I'm
in and under what circumstances.
The other part is as has been pointed out, the termination
letter very [*21] clearly states and the testimony in direct
opposition to this, further on May 24 you returned to the
DeSoto County office. You approached this black employee and
told her that you had been in a meeting with Ms. Johnson and
had told them that she was a ``good ole nigger.'' That
statement is--that's not true. I mean, the testimony
indicated that she didn't approach her, she didn't raise it,
that it was Renee Elmore that brought it up. She didn't seek
out this black employee to tell her anything about it.
Further, I don't find anywhere where it is--the other
comments, your conduct in returning and repeating, which she
didn't do. To return to the DeSoto County office and repeat
that phrase, had she repeated that phrase, it would have been
unacceptable totally as though it was acceptable to the
Mississippi Department of Human Services. I don't find it
having created a distraction within the DeSoto county office.
Nobody testified to that, or the surrounding areas. I don't
think it's caused employees to question whether the
department condones the use of racial slurs. You know, I
think the department overreacted.
The part that bothers me is to allow you to continue in
this position [*22] would discredit the agency, impair the
agency's ability to provide services, violates the agency's
responsibility to the public to administer nondiscriminatory
services, violates the agency's duty to administer working
environment free of discriminatory practices and procedures
and subject the department to potential liability for
unlawful discrimination.
If, in fact, she had returned to the DeSoto County office,
had brought this subject up
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again, and the only person--the only testimony that we have
about anybody else hearing about this thing was somebody who
Ms. Johnson and Mr. Everett had to make the comment to
somebody else. Ms.--what's her name?
Mr. Lynchard: Varrie Richmond.
The Hearing Officer: Ms. Varrie Richmond said she didn't
tell anybody else. She said she didn't call the state office
about the situation, and apparently, until she was contacted
by the state office, she had accepted Bonnie Richmond's
apology. I just think the agency overreacted, and if the
agency might find itself in a situation where every time
somebody in the agency is called a redneck by some other
employee, that they are going to be calling the state office
and wanting some relief or [*23] a honkie or a good old boy
or Uncle Tom or chubby or fat or slim.
I mean, I understand that the term ``nigger'' is somewhat
derogatory, but the term has not been used in recent years in
the conversation that it was used in my youth, and at that
point--at that time it was a derogatory remark. I think that
in this context, I just don't find it was racial
discrimination. I just don't find--she possibly should have a
letter of reprimand, but I don't think she needs to be
terminated.
I'm going to reinstate her with back pay. The agency can do
what they feel like they have got to do.
The Department of Human Services (hereinafter referred to
as ``DHS'') gave written notice of its intent to terminate
Richmond on June 21, 1994. That notice identified two
separate Group III violations (numbers 11 and 16) and
provided separately the underlying facts upon which each
violation was based.
The first offense was a violation of item number 11, which
is ``Acts of conduct occurring on or off the job which are
plainly related to job performance and are of such nature
that to continue the employee in the assigned position could
constitute negligence in regard to the agency's duties to the
[*24] public or to other state employees. (emphasis added)
The factual basis given to support this allegation was:
On May 23, 1994 while in conference with Joyce Johnson,
Division Director of Family and Children's and Jerald Everett
of the Division of Human Resources, you referred to one of
our black employees as ``a good ole nigger.'' Further on May
24, 1994 upon returning to DeSoto County you approached this
black employee and referred to her using exactly the same
words as you used when you were in conference with Joyce
Johnson and Jerald Everett the day before.
The hearing officer resolved this issue by finding:
(1) DHS overreacted;
(2) the remark was made in an open meeting with an
atmosphere of give and take;
(3) the term ``good ole nigger'' was not a racial slur;
(transcript 129)
(4) calling Varrie Richmond a ``good ole nigger'' was
equivalent to calling her ``teacher's pet''
(order by Hearing Officer Falton Mason, Jr., November 29,
1994,), and;
(5) Renee Elmore, not Bonnie Richmond, initiated the
conversation of May 24, 1994 with Varrie Richmond.
The meeting of May 23, 1994, while hastily scheduled, was a
formal meeting with two top tier DHS executives, intended to
[*25] allow Bonnie Richmond and Renee Elmore to address what
they perceived as problems in the DeSoto County office. While
the atmosphere was intended to allow for honest discussion,
there is no indication that this was intended as an informal
or unofficial meeting. Its purpose was to identify problems,
and if necessary to address them.
The fact that a business meeting may be conducted in a
relaxed and open atmosphere, is not license to engage in
boorish, crude, loutish or offensive behavior. The actions of
Bonnie Richmond in referring to Varrie Richmond as a ``good
ole nigger'' was indeed boorish, crude, loutish and offensive
behavior. This behavior was not merely inappropriate, but
highly inappropriate.
That a white employee would suggest the use of the term
``good ole nigger,'' is less inappropriate in a relaxed
meeting, raises significant questions about that person's
judgment and whether the agency would be negligent in
retaining her. That judgment is demonstrated as especially
questionable, when one realizes that Bonnie Richmond worked
in a division which is approximately 60% black, in an agency
with in excess of 50% black employees. Such a demonstrated
gross lack of judgment would [*26] justify the dismissal of
Bonnie Richmond.
The hearing officer's ruling that calling Varrie Richmond a
``good ole nigger'' was equivalent to calling her ``teacher's
pet'' strains credulity, finds no basis in reason and would
appear to be both arbitrary and capricious. The word
``nigger'' is, and has always been, offensive. Search high
and low, you will not find any non-offensive definition for
this term.\2\
2 1. a. Used as a disparaging term for a Black person:
``You can only be destroyed by believing that you really are
what the white world calls a nigger'' (James Baldwin) b. Used
as a disparaging term for any dark-skinned people. 2. Used as
a disparaging term for a member of any socially,
economically, or politically deprived group of people.
There are some words, which by their nature and definition
are so inherently offensive, that their use establishes the
intent to offend. Words such as ``nigger'' when referring to
a black person, or the words, ``bitch'' or ``whore'' when
referring to a female person. The character [*27] of these
terms is so inherently offensive that it is not altered by
the use of modifiers, such as ``good ole.''
Much is made of the fact that Renee Elmore indicated she
was not offended by the use of the term, ``good ole nigger.''
The test is not whether Renee Elmore was offended by the
use of this term. Rather it is (1) whether this term is
universally offensive, Brown v. East Miss. Electric, 989 F.2d
858, 859 (5th Cir. 1993), and (2) whether the use of this
term is inappropriate and reprehensible. The answer to each
of these is a most definitive ``yes.''
The majority quotes Elmore on page 7, as saying, ``Because
I felt as if she was describing the actions of a person, I at
that time didn't allow myself to feel anything other than
what I felt she was doing and I allowed her that leeway to
describe her.'' I suggest that effect must be given to all
portions of that quote. Particularly the phrase, ``I at that
time didn't allow myself to feel anything.'' (emphasis
added).
It is clear that Renee Elmore made a determination to not
personalize or allow herself to become emotionally involved
in Bonnie Richmond's remark. It is not uncommon for people to
deal with offensive remarks [*28] by refusing to associate
the remarks with themselves on a personal basis. This makes
the remark no less inappropriate or offensive.
However, the resolution of this matter does not hinge upon
that fact. The use of the term by Bonnie Richmond in a
meeting with two of the top executives of DHS, an agency with
about 5000 employees of whom in excess of 50% are black, and
where the Division of Family and Children Services has a 60-
40 black-white employee ratio demonstrates such a lack of
judgment and discretion that to retain her ``could''
constitute negligence in regard to the agency's duties to the
public or to other state employees.
The hearing officer and majority opinion seem to suggest
that absent evidence of a near race riot, the remark is too
inconsequential to serve as a basis of dismissal. Such a view
requires a level of myopia inconsistent with the facts and
reason.
It is (1) the remark, and (2) the lack of judgment in
making it in a professional meeting with top departmental
executives, which satisfy the requirement, ``that to continue
the employee in the assigned position could constitute
negligence in regard to the agency's duties . . . to other
state employees.''
The majority [*29] opinion is a scholarly, but sanitized
version of the hearing officer's findings and is subject to
the same infirmities found in that opinion.
The second reason given for termination of Bonnie Richmond
was ``Willful violation of State Personnel Board policies,
rules and regulations.''
The factual basis for this second allegation was the same
as the first, except it raised the issue of DHS's
consideration of this behavior and its impact upon the
integrity of DHS. The record does not reflect that DHS
identified any specific Personnel Board policies, rules or
regulations.
However, it must be presumed that an agency has the
authority to mandate civil conduct from its employees.
The actions of Bonnie Richmond exceed (1) acceptable civil
conduct, (2) acceptable social conduct, and (3) acceptable
business conduct.
This conduct was, by definition, offensive to the
individual referred to and the black employees of DHS in
general.
The actions of the EAB were not supported by substantial
evidence, and I would therefore reverse.
PAYNE, J., JOINS THIS OPINION.
Mr. REID. Judge Southwick says the decision was about technical
issues, but the dissent in the case by Judge King is eloquent. I mean
eloquent. I hadn't read that opinion prior to my conversations with
Senator McConnell, but I have read it. I understand it. I have a
totally different view than I had prior to reading that opinion.
The judge's words are eloquent. Here is part of what he said:
There are some words, which by their nature and definition
are so inherently offensive, that their use establishes the
intent to offend.
Race is a highly sensitive issue throughout the entire United States,
but especially in the States that comprise the Fifth Circuit. It took
the courageous action of judges, mostly Federal judges, on the Fifth
Circuit especially, to carry out the Supreme Court's desegregation
decisions and destroy the vestiges of the Jim Crow era. Yet even today
no African American from Mississippi sits on that court, despite the
many qualified African-American lawyers in that State. Concerns about
Judge Southwick need to be seen in that context.
I say that Judge Southwick is not being looked at with lack of favor
by the Judiciary Committee because of the color of his skin. It is
because of his judicial participation in various opinions.
The members of the Judiciary Committee will decide whether to report
[[Page S9658]]
this nomination to the full Senate. If they choose to report the
nomination, I will schedule action as quickly as I can. If they reject
the nomination, that action will also be on the merits.
After I had read the opinion and understood the case, I visited
personally with Thad Cochran. I think the world of Thad Cochran. I have
served with him now in the Congress for 25 years. I have served with
Senator Lott for 25 years. I went to both of them and said: I know how
strongly you feel about Judge Southwick, but here are the facts. I read
to them the dissent of Judge King. I read to them the full dissent.
Anyone who cares to hear what Judge King had to say only has to look at
the Congressional Record.
I also told them that the Magnolia Bar Association, the African
American Bar Association in the State of Mississippi, opposes Judge
Southwick. The NAACP opposes Judge Southwick.
Republican Senators may disagree with the decision of the Judiciary
Committee when and if it comes, but they should not treat it as an
affront or an outrage. It is simply the way in which the Founders
envisioned the Senate would work as a partner with the President in
deciding who is entitled to lifetime appointments to the Federal bench.
Again, the Judiciary Committee didn't stall Southwick. They scheduled
a hearing at a time that was convenient to everyone. It was precise. It
was to the point. Everyone was able to ask their questions. They had a
full hearing. If he can't convince that committee that he is the man
for the job, that is our process. Certainly, at a subsequent time, if
and when we get a Democratic President, if they process these
nominations in the manner that we have, that will be fine. It is the
way we are supposed to work.
Whatever happens with the Southwick nomination, the Senate will
continue to process judicial nominations in due course and in good
faith, as I have pledged. I repeat, I know how strongly the
distinguished Republican leader feels about judges. I think there are a
lot of things that are just as important. He feels strongly about this.
I accept that. But I would like everyone to look at the record as to
what has happened with this nomination. It has been moved
expeditiously. They can have a vote anytime they wish in the
committee. There are votes that take place almost every Thursday. They
can schedule it anytime they want. But I think it would be asking quite
a bit for someone to think that when the committee of jurisdiction on
an issue turns something down, we should take it up on the floor. That
is not how things work.
I would only say, I would think, based on the decisions participated
in by Judge Southwick, anyone who has any concern about the feelings of
the members of the Judiciary Committee who are Democrats should read
this record because it explains very clearly what the problem is in
this case.
Mr. President, we were hoping to clear a number of the President's
nominations today--the Export-Import Bank of the United States, two
nominees we were ready to clear; the Securities Investor Protection
Corporation, one, two, three nominations; the National Oceanic and
Atmospheric Administration, we have someone there to clear; the
Securities Investor Protection Corporation, we have an individual there
who has been cleared on our side.
All these nominations have been cleared on our side. The holdups are
with the minority. So we are trying to clear the President's
nominations. We cannot do it unless the Republicans agree to it. They
are his nominations.
____________________