[Congressional Record Volume 153, Number 120 (Wednesday, July 25, 2007)]
[Senate]
[Pages S9867-S9869]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  NOMINATION OF JUDGE LESLIE SOUTHWICK

  Mr. DURBIN. Mr. President, one of the more challenging tasks for a 
Senator is not to stand in judgment of a bill or even a law or a policy 
but to stand in judgment of a person. I served in the House of 
Representatives for 14 years before coming to the Senate. It is the one 
dramatic difference between the two bodies. Time and again we are 
called on in the Senate, in our capacity to advise and consent to 
Presidential nominations, to stand in judgment of people. It is not an 
easy assignment. You have to, in a matter of a short period, maybe meet 
a person, read about their background, and try to think ahead whether 
they are ready for the job they are being sent to do. For some it is 
only a temporary assignment. It might be for a year or two or more in a 
Federal agency with an important responsibility. I look at those 
judgments and assignments seriously, but not nearly as seriously as the 
task of picking Federal judges. A Federal judge, that man or woman, is 
appointed for a lifetime. The decision you make about a person has to 
be done more carefully. There has to be more reflection. If questions 
are raised about a person, their judgment, their values, their 
background, their veracity, their integrity, those questions are taken 
more seriously because that judge on that bench will be the face of 
America's law for the rest of his or her natural life.
  As a member of the Judiciary Committee, I come face to face with 
these decisions on a regular basis and try to do my best to not only 
help pick good judges for my own State of Illinois but to be fair in 
judging those the President, whether a Democrat or Republican, sends to 
us for approval.
  There is a controversial nomination now pending for the U.S. Court of 
Appeals for the Fifth Circuit, the nomination of a local State judge in 
Mississippi named Leslie Southwick. I came to the Southwick nomination 
with no advance knowledge of the man or anything he had done. I truly 
had an open mind. I attended his nomination hearing and tried to give 
him the benefit of the doubt. Today I am sorry to report I have only 
doubt about his appointment to this lifetime position. There are too 
many questions about whether Judge Southwick would bring a measure of 
fairness in cases involving civil rights and the rights of ordinary 
people in his court. This perception as to whether he will be fair or 
evenhanded is determinative in my mind. Whether you agree with that 
perception, it is there.
  It is sad but accurate to report that Judge Southwick has lost the 
confidence of the civil rights community in the State of Mississippi 
and across the Nation. There is one case I wish to mention which may 
help explain why this has occurred. The case is called Richmond v. 
Mississippi Department of Human Services. Because of the wording in the 
case, it is unfortunate, I will be unable to read it into the Record; 
it would be inappropriate. But suffice it to say, in this 1998 case, 
the Mississippi State Court of Appeals ruled 5 to 4 to reinstate and 
give back pay to a White employee who had been fired for calling a 
Black employee the ``N'' word. Judge Southwick was in the five-person 
majority and thus was the deciding vote in that case.
  Here is the background. The plaintiff, Bonnie Richmond, was a White 
employee who worked at the Mississippi Department of Human Services, a 
State agency with a 50-percent African-American workforce. After 
referring to an African-American colleague as a ``good ole'' ``N'' 
word, Bonnie Richmond, the white employee, was fired. She appealed her 
termination and was successful. A State hearing officer reinstated her. 
That decision was affirmed by the full Mississippi Employee Appeals 
Board, then reversed by the State court trial judge. Judge Southwick's 
court reversed it again, ruling for the White employee who had used the 
offensive racial epithet. Finally, the Mississippi Supreme Court 
weighed in. The Mississippi Supreme Court unanimously reversed the 
majority opinion which Judge Southwick had signed his name to, ordering 
the case to be remanded to determine an appropriate punishment short of 
termination for the White employee, Bonnie Richmond.
  Mr. Southwick's defenders point out that he didn't write the opinion 
he signed on to. That is certainly true. But he didn't have to sign on 
to it, if he didn't agree with it. He could have filed a concurrence 
agreeing in the judgment but not the reasoning. He chose not to do so. 
The opinion Judge Southwick signed stated that the White employee who 
used the ``N'' word in this case ``was not motivated out of racial 
hatred or animosity directed toward her co-worker or toward blacks in 
general.''
  I don't believe that is a mainstream view in America. I don't believe 
it is a mainstream view to say that the ``N'' word is ``not motivated 
out of racial

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hatred or animosity.'' The Southwick majority also affirmed the 
determination of the hearing officer who said the use of the term good 
old ``N'' word was intended to mean a ``teacher's pet'' and was in this 
context about as offensive as calling someone ``a good old boy or Uncle 
Tom or chubby or fat or slim.'' Again, is that a mainstream view in 
America?
  Recently a civil rights organization had a symbolic ceremonial burial 
for the ``N'' word, saying it is time it be removed from the American 
language, it is so offensive. For someone in Judge Southwick's court to 
be so dismissive of this term is truly to be insensitive. I don't 
believe the opinion which Judge Southwick signed on to reflected the 
type of racial sensitivity we need in a Federal judge.
  The dissent in the case was eloquent and powerful. It said:

       The [``N'' word] is, and has always been, offensive. Search 
     high and low, you will not find any non-offensive definition 
     of this term. There are some words, which by their nature and 
     definition are so inherently offensive, that their use 
     establishes the intent to offend.

  I certainly agree with that powerful dissent. I am sorry Judge 
Southwick does not.
  At his May 10, 2007 hearing, Judge Southwick was asked if he still 
stood by his vote in that case. He said he did. I find that very 
troubling.

  This is particularly important given the context of this nomination. 
This Fifth Circuit covers the States of Mississippi, Texas, and 
Louisiana. Those three States have the largest percentage of minority 
residents of any Federal circuit in America--44 percent. The State of 
Mississippi has the largest percentage of African Americans of any 
State in the Union--36 percent.
  There are 19 judges on the Fifth Circuit. Of those 19, only one is 
African American. That would be Judge Carl Stewart of Louisiana.
  Now, some have suggested that recent nominees to the Fifth Circuit 
reflect a deliberate design to protect this imbalance. Others say it is 
a conscious disregard of the obvious unfairness. The most generous view 
is that it is only a coincidence.
  Two previous nominees to this Fifth Circuit seat--Charles Pickering 
and Michael Wallace--were not confirmed because of their anti-civil 
rights backgrounds.
  Judge Pickering had unethically tried to lower the prison sentence 
for a convicted cross burner. Mr. Wallace defended the discriminatory 
policies of Bob Jones University and was so notorious for his hostility 
to civil rights that the American Bar Association gave him a rating of 
``not qualified.''
  The Southwick nomination has become a controversial nomination, with 
more focus than any other current circuit court nomination I can think 
of on the racial issue. Time and again, the nominees sent by the White 
House to the Senate Judiciary Committee fail the most basic test as to 
whether they will fill this lifetime position on the Federal bench and 
rule fairly on issues involving race.
  It is critical that members of the Fifth Circuit have an open mind 
when it comes to issues of race. In a letter sent to the Judiciary 
Committee, the Congressional Black Caucus opposed the confirmation of 
Judge Southwick and said:

       Our Caucus is most concerned about Mr. Southwick's ability 
     to afford equal justice under law in the Circuit where racial 
     discrimination has always been most pronounced.

  In another letter of opposition sent to the Judiciary Committee, the 
NAACP, the NAACP Legal Defense Fund, National Urban League, and the 
Rainbow/PUSH Coalition said:

       This position is a lifetime appointment. If confirmed, 
     Southwick will often provide the final word on the civil 
     rights of millions of minority residents within the Fifth 
     Circuit.

  Historically, there have been some judicial giants in the Fifth 
Circuit who have served with great courage. Alabama used to be part of 
that Circuit. A few years ago, I went to Alabama for the first time as 
a guest of an organization known as the Faith and Politics Institute on 
Capitol Hill. It is a bipartisan group, and it tries to blend some 
views toward values with political decisions.
  Under the leadership of John Lewis, the Congressman from Atlanta, GA, 
who was a pioneer in the civil rights movement, we went down to visit 
some of the key places where the civil rights struggle occurred.
  We went to Birmingham and Montgomery and Selma, AL. I had to leave a 
little early, and so it appeared I would not have a chance to visit the 
Edmund Pettus Bridge, the notorious bridge where the march from Selma 
was stopped with violence. John Lewis, typical of what a fine person he 
is, said: I will get up extra early Sunday morning. I will drive you 
over there. You and I will walk across the bridge together.
  Well, Senator Sam Brownback joined us, and I am sure Senator 
Brownback felt as I did, that it was an extraordinary day. That early, 
cool Sunday morning, John Lewis took us across that bridge and showed 
us the point where he had been clubbed and almost killed, as he tried 
to walk on that civil rights march.
  I will never forget that scene. As a college student, I thought that 
maybe I could be there at that march. As luck would have it, I was not. 
I have regretted it ever since. But to be there that moment with John 
Lewis a few years ago really was a touching experience.
  As we were driving back from the Edmund Pettus Bridge, John Lewis 
said to me: Do you know who the real hero was that day? It was Federal 
Judge Frank Johnson of Alabama. Johnson ordered the integration of 
Montgomery buses after Rosa Parks' protest in 1956, and he was the one 
who allowed that march in Selma to take place. Because of Judge 
Johnson's courage, he was shunned by his community, ostracized. His 
mother's home was bombed. He was threatened many times because of his 
courage when it came to the issue of civil rights.
  So when we speak of the Fifth Circuit, and its history, and Federal 
judges, I think of Frank Johnson and what he meant to America's history 
because of his courage.
  At Judge Southwick's nomination hearing, I wanted to be fair with 
him, and I asked him a question which was maybe one of the easiest 
questions you could ask of a nominee. I asked him to name a single time 
in his career or in his life when he took an unpopular point of view on 
behalf of the voiceless or powerless. He could not name a single 
instance.
  I thought, perhaps that was not fair. The judge should be allowed to 
reflect on that question. I will send it to him in writing and ask him: 
Was there a time in your life when you sided, for example, with a civil 
rights plaintiff when your court was split? He could not name a single 
case in his judicial career.
  There has been a heavy focus placed on Judge Southwick's votes in the 
so-called ``N'' word case--which I have discussed--and a custody case 
in which he voted to take an 8-year-old girl away from her lesbian 
mother.
  I disagree with Judge Southwick's position in these cases. I think, 
sadly, they show an inclination toward intolerance and insensitivity. 
But I am sympathetic to the argument that these are only two cases out 
of thousands in which he has taken part. However, it is not the end of 
the story.

  A business group in Mississippi looked at 638 cases during an 8-year 
period of time and rated Judge Southwick as the judge on the 
Mississippi Court of Appeals most likely to rule against common, 
ordinary people, employees suing their employers. Another study showed 
he voted with companies and employers, businesses and powerful 
interests, in 160 out of 180 cases in which there was a split decision.
  Many groups that do not normally take a position on a Federal judge 
have spoken out against Judge Southwick. There are many positive things 
about this judge's life. He has served his country. He has served in 
the military. And I am sure he has done many good things. But when a 
Senator has to make a decision about a lifetime appointment to a 
critical circuit court position, in a controversial area, where we have 
had a string of controversial nominees, you have to take that very 
seriously.
  There is just too much doubt about whether Judge Southwick will have 
an open mind when it comes to civil rights and the rights of ordinary 
people in his court, and that is why I will oppose him if he comes 
before the Judiciary Committee.
  A final word. Senator Patrick Leahy, the chairman of the Senate 
Judiciary Committee, has said he will

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call Judge Southwick for a vote whenever Senator Specter and the 
Republican minority want his name to be called. I do not know how my 
colleagues on the Democratic side will vote. I know many of them share 
my misgivings.
  Judge Southwick has had a hearing, which is more than can be said for 
many nominees from the Clinton administration--over 60 judicial 
nominees were bottled up in the Senate Judiciary Committee during those 
years, never even given the dignity or courtesy of a hearing and vote. 
Judge Southwick had his hearing. He had his opportunity to speak and 
answer questions, unlike dozens of Clinton nominees who never had that 
chance.
  Now his record is there for everyone to view, and his name is there 
if the Republicans decide they wish to call him for a vote. This is not 
obstructionism. This is the process as it should work. I urge my 
colleagues, particularly from the State of Mississippi, if Judge 
Southwick does not prevail, I hope they will be able to find in that 
great State someone who can be brought to this nomination who will not 
incur the wrath and doubt that Judge Southwick has over his decisions 
and over his testimony before the Senate Judiciary Committee.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.

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