[Congressional Record Volume 153, Number 161 (Tuesday, October 23, 2007)]
[Senate]
[Pages S13242-S13254]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF LESLIE SOUTHWICK TO BE U.S. CIRCUIT JUDGE FOR THE FIFTH
CIRCUIT
The PRESIDING OFFICER (Mr. Salazar). Under the previous order, the
Senate will go into executive session and the clerk will report the
nomination.
The legislative clerk read the nomination of Leslie Southwick, of
Mississippi, to be United States Circuit Judge for the Fifth Circuit.
The PRESIDING OFFICER. The Republican leader.
cloture motion
Mr. McCONNELL. Mr. President, I send a cloture petition to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 291, the nomination of Leslie Southwick, of
Mississippi, to be United States Circuit Judge for the Fifth
Circuit.
Mitch McConnell, Arlen Specter, Wayne Allard, Johnny
Isakson, Richard Burr, Norm Coleman, David Vitter, Kay
Bailey Hutchison, George V. Voinovich, John Thune, Jim
DeMint, Tom Coburn, Michael B. Enzi, Elizabeth Dole,
Jeff Sessions, Jim Bunning, John Barrasso, Trent Lott,
Thad Cochran.
The PRESIDING OFFICER. Who yields time?
The Senator from Vermont.
Mr. LEAHY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEAHY. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, today, the Senate considers the
controversial nomination of Leslie Southwick to the United States
Circuit Court of Appeals for the Fifth Circuit. Unlike so many of
President Clinton's nominees, Mr. Southwick was accorded a hearing on
his nomination.
I refused to ambush Leslie Southwick the way Republicans ambushed
Ronnie White in 1999. Thus, despite my opposition to this nomination, I
made sure that Mr. Southwick was treated fairly and that his nomination
was debated and voted upon by the Judiciary Committee. The process has
been open and fair and the rights of every Senator Democratic or
Republican have been respected.
[[Page S13243]]
During the Clinton administration, several outstanding nominees to
the Fifth Circuit were pocket filibustered successfully by the
Republicans. They included Judge Jorge Rangel of Texas, Enrique Moreno
of Texas, and Alston Johnson of Louisiana. They were pocket
filibustered without a hearing or committee consideration.
This is a seat on the Fifth Circuit that would have been filled long
ago but for a series of troubling nominations. In the last Congress,
President Bush nominated Michael Wallace to this seat, the first
circuit court nomination since 1982 to receive a unanimous rating of
``not qualified'' from the American Bar Association.
This is the seat to which President Bush had previously used a recess
appointment to put Charles Pickering on the bench, after his nomination
was voted down by the Judiciary Committee in 2002. President Bush
announced that appointment, as I recall, on the Martin Luther King Jr.
holiday weekend in 2004, despite the significant concerns and open
debate about that controversial nomination.
Those concerns included Judge Pickering's intervention with the
Department of Justice in an attempt to get the sentence of a convicted
cross burner reduced.
The nomination we consider today has engendered significant
opposition. Those opposing this nomination include: the Leadership
Conference on Civil Rights, the Human Rights Campaign, the Mississippi
State Conference of the NAACP, the NAACP Legal Defense Fund, Lambda
Legal, the National Employment Lawyers Association, the Magnolia Bar
Association, the National Organization of Women, the National Urban
League, the AFL-CIO, the Congressional Black Caucus, and many more.
A number of members of the Judiciary Committee spoke eloquently about
their concerns and doubts during committee consideration on August 2.
I have given careful consideration to Mr. Southwick's record. Many
share with me my concern about Judge Southwick's deciding vote in
Richmond v. Mississippi Department of Human Services, 1998. This
decision reinstated a white state social worker who had been fired for
using a racial epithet what has come to be known colloquially as ``the
n word'' in referring to an African-American coworker during a meeting
with high-level company officials.
That epithet was called by one Fifth Circuit opinion ``a universally
recognized opprobrium, stigmatizing African-Americans because of their
race.'' Yet the hearing officer at her appeal before the State Employee
Appeals Board suggested that the use of the racial slur ``was in effect
calling the individual a 'teacher's pet.''' I am not sure any African
American would consider it being called a ``teacher's pet.''
Judge Southwick provided the deciding vote to uphold the hearing
officer's conclusion, the opinion he joined finding that the racial
slur was ``not motivated out of racial hatred or animosity directed at
her co-worker or toward blacks in general, but was, rather, intended to
be a shorthand description of her perception of the relationship
existing between the [co-]worker and [a] DHS supervisor.''
In dissent, two judges criticized this opinion for presenting a
``sanitized version'' of the facts and for suggesting that ``absent
evidence of a near race riot, the remark is too inconsequential to
serve as a basis of dismissal.'' The dissent found that this racial
epithet is ``inherently offensive, and [its] use establishes the intent
to offend.'' The dissent was right.
In my view, the Mississippi Supreme Court did the right thing in
reversing that decision and I commend them. There is no place for ``the
n word'' in the workplace or in use by a supervisor to and about an
employee. None. Just as there is no place for it in this body or
anywhere else. I am not naive enough not to know the word is used in
parts of America, but it should be condemned by all wherever it is
used, and it certainly is by me.
If, as Mr. Southwick now says, his view of the Richmond case was the
narrow, technical, legalistic one that he now says justifies his
providing the deciding vote to the majority opinion, he could have said
so back then, in a separate opinion.
He could have noted that he felt such use of ``the n word'' was
inexcusable, but that he felt constrained by his limited role on appeal
to apply a standard of review that compelled him to reverse Judge
Graves of the Circuit Court and reaffirm the Employee Appeals Board's
reinstatement of the offending supervisor with back pay. That is not
what he did, however.
In the face of a cogent dissent, he provided the deciding vote to
uphold the decision excusing that remark.
Likewise I am troubled by Judge Southwick's actions in S.B. v. L.W,
in which he voted to uphold a decision taking an 8-year-old child away
from her biological mother due to her mother's sexual orientation and
the fact that she was living with a female partner.
My concern is not just that Judge Southwick joined the majority
opinion but that he went out of his way to sign on to a concurring
opinion that suggested that sexual orientation is an individual
``choice'' and an individual must accept that losing the right of
custody over one's child is one of the ``consequences flowing from the
free exercise of such choice.''
I also have concerns about his approach in some cases involving
allegations of race discrimination in jury selection, such as his
opinion in a 1997 case, Brock v. Mississippi upholding a criminal
conviction where the prosecution struck an African-American juror,
purportedly because he lived in a high crime area.
The dissenting judge criticized Judge Southwick's opinion for
accepting a strike which ``on its face appears geared toward a racially
identifiable group.'' In another case involving jury discrimination,
Bumphis v. State, 1996, three judges criticized Judge Southwick's
majority opinion for ``establishing one level of obligation for the
state, and a higher one for defendants on an identical issue.''
His legal writing also points to a narrow view of the role of the
Federal courts in upholding protections against race discrimination. In
one article, he found ``compelling'' a statement of a Mississippi
Supreme Court Justice that ``the judiciary is not the avenue to
effectuate the removal of the Confederate battle flag from public
property.''
I have questions whether he would be balanced in protecting the
rights of employees given the overwhelming number of cases 160 out of
180 written decisions--in which he has offered a narrow interpretation
of the law to favor protecting business and corporate interests at the
expense of the rights of workers and consumers.
In one 1999 case, Dubard v. Biloxi, H.M.A., Judge Southwick authored
a dissent expressing the virtues of a legal doctrine that would allow
employers to fire employees for any reason, even though such an
analysis was not relevant in the case before him.
My concerns about his bias are heightened by a law review article he
wrote characterizing litigation against tobacco companies led by former
Mississippi Attorney General Michael Moore as destabilizing and posing
separation of powers concerns.
As I said in opposing this nomination in committee, this is not a
decision I come to lightly. I take seriously the strong support of
Senator Cochran and Senator Lott whom I respect, and I have expressed
my concerns directly to them as well as to the White House.
I also take seriously Mr. Southwick's answers to my questions and to
those of others in connection with his hearing. I was glad to see that
he now acknowledged the offensiveness of the racial epithet used in the
Richmond case and also that human rights law has evolved since 2001
when he joined the decision in the child custody case.
Still, I share the deep disappointment of members of the African-
American and civil rights communities that this administration
continues to renege on a reported commitment to appoint an African
American to the Mississippi Federal bench.
In more than 6 years, President Bush has failed to do so. He has
appointed only 20 African-American judges to the Federal bench,
compared to 52 African-American judges appointed by President Clinton
in his first 6 years in office.
With an ever-growing number of outstanding African-American lawyers
in Mississippi, the State with the highest percentage of African
Americans in the country, it is not as if there is a dearth
[[Page S13244]]
of qualified candidates. Nonetheless, President Bush has now submitted
10 nominees to the Federal bench in Mississippi, seven at the district
level and three to the United States Court of Appeals for the Fifth
Circuit, and none of these nominees has been African American.
Our Nation's diversity is one of its greatest strengths, and I am
disappointed that the President has missed yet another opportunity to
reflect this great strength in our Federal courts. Many of us believe
that diversity makes America what it is. It is the diversity in our
States, our courts, this body, and our families that makes us stronger.
When viewed against his record on the bench, the importance of this
seat on the Fifth Circuit, and the troubling lack of diversity on that
court, I am not convinced that he is the right nominee for this vacancy
at this time. I shall vote no on cloture and, if it is invoked, no on
this nomination.
I ask unanimous consent that letters of opposition and others be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Langrock Sperry & Wool, LLP,
Middlebury, VT, June 5, 2007.
Hon. Patrick J. Leahy,
Senate Russell Office Building,
Washington, DC.
Dear Pat: I understand the nomination of Leslie Southwick
to the 5th Circuit Court of Appeals is coming up for a vote
this Thursday. The little I know about Judge Southwick
absolutely frightens me. His attitude towards lesbian parents
is just totally inconsistent with Vermont philosophy and with
respect for human dignity. I also understand he has been
involved in some cases which would indicate insensitivity to
African Americans. I would certainly hope that your Committee
does not approve him.
Sincerely yours,
Peter F. Langrock.
____
Leadership Conference
on Civil Rights,
Washington, DC, October 23, 2007.
Dear Senator: On behalf of the Leadership Conference on
Civil Rights (LCCR), the nation's oldest, largest, and most
diverse civil and human rights coalition, we write to express
our opposition to the confirmation of Leslie H. Southwick, a
former Mississippi Court of Appeals judge, to the United
States Court of Appeals for the Fifth Circuit. His record
raises too many questions about his commitment to civil and
human rights for him to be entrusted with a lifetime
appointment to the federal judiciary. We urge you to vote no
on cloture on the Southwick nomination.
The federal courts of appeal are the courts of last resort
in most federal cases. Moreover, the Fifth Circuit has the
highest percentage of minority residents of all the federal
circuits, making Judge Southwick's record on matters of civil
rights particularly important. Unfortunately, Judge
Southwick's decisions as a state court judge, along with his
hearing testimony, indicate that he favors the interests of
the powerful over the interests of minorities, working
people, and others who depend on judges to stand up for them.
This record warrants the rejection of Judge Southwick's
nomination to the Fifth Circuit.
In Richmond v. Mississippi Dep't of Human Services, Judge
Southwick joined a 5-4 ruling upholding the full
reinstatement order of the state's Employee Appeals Board
(EAB) of a white state social worker who had been fired for
calling an African-American co-worker ``a good ole nigger.''
The ruling he joined had declared that, taken in context,
this slur was an insufficient ground to terminate the white
plaintiffs employment in part because it ``was not motivated
out of racial hatred or racial animosity directed toward a
particular co-worker or toward blacks in general.'' Moreover,
the EAB decision upheld by the Court of Appeals decision
trivialized the use of the words ``good ole nigger'' by
comparing them to the expression ``teacher's pet.'' The Court
of Appeals did nothing to distance itself from this aspect of
the EAB decision.
The reasoning offered by Judge Southwick and his colleagues
in the majority is nothing short of baffling. As two
dissenters in the 5-4 decision rightfully pointed out: ``The
word 'nigger' is, and has always been, offensive. Search high
and low, you will not find any nonoffensive definition for
this term. There are some words, which by their nature and
definition are so inherently offensive, that their use
establishes the intent to offend.''
Fortunately the Supreme Court of Mississippi reversed the
decision, stating that the EAB should not simply be upheld,
but rather that the matter should be remanded to the EAB for
consideration of whether full reinstatement was truly
justified under the circumstances or whether some other
penalty short of discharge might be appropriate.
In another case, S.B. v. L.W., Judge Southwick joined an
opinion that upheld the removal of an eight-year-old girl
from the custody of her bisexual mother. In addition to
joining the majority opinion, he was the lone judge to join a
colleague's gratuitously anti-gay concurring opinion. The
concurrence argued the ``choice'' to engage in homosexuality
comes with consequences, up to and including the
consideration of ``the homosexual lifestyle'' as a
determining factor in child custody cases. The views
expressed in the concurring opinion raise doubts about Judge
Southwick's interest in ruling fairly in cases that involve
the civil rights of gays and lesbians.
In Dubard v. Biloxi, H.M.A., Judge Southwick wrote a
dissenting opinion in which he extolled the virtues of
employment-at-will, a doctrine that provides that employers
should be able to fire employees for virtually any reason,
even though his analysis was not relevant to reaching a
decision in the case. He wrote that ``I find that employment
at will, for whatever flaws a specific application may cause,
is not only the law of Mississippi but it provides the best
balance of the competing interests in the normal employment
situation. It has often been said about democracy, that it
does not provide a perfect system of government, but just a
better one than everything else that has ever been suggested.
An equivalent view might be seen as the justification for
employment at will.'' His gratuitous comments raise questions
about his ability to separate his own views from his duty to
follow the law in labor and employment cases.
Judge Southwick also has a poor record in cases involving
race discrimination in jury selection. He has routinely
rejected defense claims that prosecutors struck African-
American jurors based on race. At the same time, however, he
has usually upheld allegations by prosecutors that defendants
tried to strike white jurors on the basis of race. One of
Judge Southwick's own colleagues, in response, accused him of
``establishing one level of obligation for the State, and a
higher one for defendants on an identical issue.''
His record also shows a troubling tendency, in state
employment law and tort cases, to favor business and
insurance interests over injured parties. He did so in 160
out of 180 such published cases in . which at least one judge
dissented, giving him an 89 percent pro-business voting
record.
When asked by Senator Durbin (D- IL) during live
questioning at his hearing if he could think of one example
of an unpopular decision he made in favor of the powerless,
the poor, minorities, or the dispossessed, Judge Southwick
responded that he could not. In response to a follow-up
written question posed by Senator Durbin, Judge Southwick
indicated that he could not find a single nonunanimous case,
of the more than 7000 opinions that he wrote or joined, in
which he voted in favor of a civil rights plaintiff or wrote
a dissent on behalf of a plaintiff.
Given the tremendous impact that federal judges have on
civil rights and liberties, and because of the lifetime
nature of federal judgeships, no judge should be confirmed
unless he or she demonstrates a solid commitment to
protecting the rights of all Americans. Because Judge
Southwick has failed to meet this burden, we urge senators to
vote no on cloture on the nomination.
Thank you for your consideration. If you have any
questions, please contact Nancy Zirkin, Vice President and
Director of Public Policy, at 202-263-2880, or Paul
Edenfield, Counsel and Policy Analyst, at 202-263-2852.
Sincerely,
Wade Henderson,
President & CEO.
Nancy Zirkin,
Vice President, Director of Public Policy.
____
Human Rights Campaign,
Washington, DC, May 23, 2007.
Dear Members of the Committee on the Judiciary: I am
writing on behalf of the Human Rights Campaign and our
700,000 members and supporters to oppose the nomination of
Leslie Southwick to the United States Court of Appeals for
the Fifth Circuit. As a Mississippi Judge, Southwick
demonstrated a serious lack of understanding of gay people
and families. His statements during his hearing before this
Committee and his written responses to your questions do not
satisfy us that his positions have evolved nor that he would
fairly judge cases involving the rights of gay, lesbian,
bisexual, and transgender (``GLBT'') Americans.
During his tenure on the Mississippi Court of Appeals,
Judge Southwick (now in private practice) participated in a
custody case involving a lesbian mother. The majority
decision, which Southwick joined, took an eight-year-old
child from the mother, citing in part that the mother had a
``lesbian home.'' The opinion further denigrates what it
calls the ``homosexual lifestyle'' and the ``lesbian
lifestyle.''
More disturbingly, Judge Southwick joined a concurrence
written by Judge Payne--completely unnecessary to effectuate
the result--that emphasized Mississippi's public policy
against lesbian and gay parents (using only the term
``homosexuals''). Judge Southwick was the only judge in the
majority to join Judge Payne's concurrence, which is rife
with misconceptions and biases.
The concurrence does not even refer to gay individuals, but
rather focuses on ``the practice of homosexuality.'' It then
cites Mississippi's law prohibiting same-sex couples from
adopting children--even though this was not an adoption case,
but rather a case regarding a biological mother's right to
retain custody of her child. The opinion even goes so far as
to cite the state's sodomy law (subsequently invalidated by
the Supreme Court's decision in Lawrence v. Texas).
[[Page S13245]]
Perhaps most troublingly, the concurrence states that even
if the mother's sexual acts are her choice, she must accept
the fact that losing her child is a possible consequence of
that ``choice.'' This statement underscores Judge Southwick's
disregard for commonly accepted psychiatric and social
science conclusions. The American Psychological Association
(APA) has made clear that sexual orientation is not a choice.
The APA, along with every other credible psychological and
child welfare group, has also concluded that lesbian and gay
people are equally successful parents as their heterosexual
counterparts. This disregard for widely accepted social
science conclusions has ramifications not only for cases
involving gay and lesbian people, but also in any case where
respect for science comes into play--whether this involves
reproductive choice, people with disabilities, environmental
studies, to name a few.
No parent should face the loss of a child simply because of
who they are. If he believes that losing a child is an
acceptable ``consequence'' of being gay, Judge Southwick
cannot be given the responsibility to protect the basic
rights of gay and lesbian Americans.
When questioned before this Committee about why he joined
this offensive concurrence, Southwick gave the unsatisfactory
response that he did not write it. He further stated that the
concurrence reflected Mississippi's public policy, but did
not indicate why he joined the concurrence that his
colleagues deemed unnecessary. He did not distance himself
from the concurrence or the language that it contains.
In his written responses to questions about this case and
about the rights of gay and lesbian Americans, Southwick did
not provide adequate reassurance that his position has
changed or that his understanding has evolved. Although he
repeatedly indicated that Lawrence v. Texas is now
controlling precedent, having overruled Bowers v. Hardwick,
this is an insufficient answer. Although we are hopeful that
Lawrence will bring about greater equality for GLBT
Americans, Southwick's promise to adhere to that precedent
does not address the question of whether he believes that gay
people should have the same parenting rights as others.
The United States Court of Appeals for the Fifth Circuit
has historically paved the way for civil rights advances. We
believe that Judge Southwick's nomination is inconsistent
with this important legacy, and would turn back the tide of
progress by denying equal protections to GLBT Americans.
We therefore oppose his nomination and request that you
vote against his confirmation. Only a judge who has
demonstrated that he can be a fair and impartial judge for
all Americans, regardless of their sexual orientation, is
entitled to confirmation on this important court. For more
information, please contact Senior Public Policy Advocate
David Stacy at [email protected], or Legal Director Lara
Schwartz at [email protected].
Sincerely,
Allison Herwitt,
Legislative Director.
____
National Association for the Advancement of Colored
People Mississippi State Conference,
Jackson, MS, May 9, 2007.
Hon. Patrick Leahy,
Dirksen Senate Office Building,
Washington, DC.
Hon. Arlen Specter,
Dirksen Senate Office Building,
Washington, DC.
Dear Chairman Leahy and Ranking Member Specter: The
Mississippi State Conference of the NAACP is strongly opposed
to the nomination of Leslie Southwick to the Fifth Circuit
Court of Appeals.
As you are well aware, previous nominations to this
particular seat on the Fifth Circuit have raised serious
civil rights problems. In reviewing this history, we cannot
help but conclude that this Administration is determined to
place a person hostile to civil rights in the Mississippi
seat on the Fifth Circuit. Judge Charles Pickering was
nominated in 2001. The Senate refused to confirm him, largely
based on his civil rights record. President Bush then
nominated Michael Wallace to the same seat. The American Bar
Association found Mr. Wallace to be ``unqualified,'' due to
his judicial temperament regarding civil rights issues.
Wallace withdrew his nomination at the end of 2006. Now,
President Bush has named yet a third nominee with a troubling
civil rights record.
We note that the Southwick nomination does nothing to
ameliorate the egregious problem with the lack of diversity
on Mississippi's federal bench. Mississippi has the highest
African-American population of any state (36%). Yet there has
never been an African American appointed to represent
Mississippi on the Fifth Circuit. African-American
representation on the federal district court in Mississippi
has been limited to one judge, Judge Henry Wingate, appointed
over twenty years ago. In his two terms, President Bush has
made ten nominations to the federal bench in Mississippi--
district and appellate. None were African American. This is
extremely disturbing to many Mississippians, who believe the
State should be fairly represented on the federal bench.
The civil rights record of Judge Southwick on the
Mississippi Court of Appeals gives us great pause. We are
deeply troubled by his rulings on race discrimination in the
areas of employment and jury selection.
Judge Southwick participated in a truly stunning decision,
Richmond v. Mississippi Dep't of Human Services. He joined a
ruling that a Mississippi state agency could not terminate an
employee for using the word ``nigger'' toward an African-
American coworker. At a business conference, the white
employee had called the black employee ``a good ole nigger,''
and then used the same term toward the employee the next day
at the office. The state agency fired the white employee. But
a hearing officer reinstated the employee, finding that
calling the employee ``a good ole nigger'' was equivalent to
calling her ``teacher's pet.'' Southwick upheld the
reinstatement.
The opinion endorsed by Southwick makes outrageous
conclusions about the use of the term ``nigger'' in the
workplace. The opinion states: ``[The white employee]
presented proof that her remark, though undoubtedly ill-
advised and indicative of a rather remarkable insensitivity
on her part, was not motivated out of racial hatred or racial
animosity directed toward a particular co-worker or toward
blacks in general.'' Astonishingly, the court credited the
white employee's testimony that her remark was intended to be
``a shorthand description'' of the relationship between an
employee and a supervisor.
Two of Southwick's colleagues strongly dissented. They
stated that it ``strains credulity'' to compare calling the
employee ``a good ole nigger'' with ``teacher's pet.'' The
dissent wrote: ``The word `nigger' is, and has always been
offensive. . . . There are some words, which by their nature
and definition are so inherently offensive, that their use
establishes the intent to offend. . . . The character of
these terms is so inherently offensive that it is not altered
by the use of modifiers such as `good ole.' . . . [The
rulings] seem to suggest that absent evidence of a near race
riot, the remark is too inconsequential to serve as a basis
for dismissal. Such a view requires a level of myopia
inconsistent with the facts and reason.'' Indeed, the
Mississippi Supreme Court unanimously reserved the ruling
joined by Southwick to uphold the reinstatement of the white
employee.
Additionally, we are disturbed by Judge Southwick's rulings
on race discrimination in jury selection. Dozens of such
cases reveal a pattern by which Southwick rejects claims that
the prosecution was racially motivated in striking African-
American jurors while upholding claims that the defense
struck white jurors on the basis of their race. In Bumphis v.
State, an appellate colleague accused Southwick of
``establishing one level of obligation for the State, and a
higher one for defendants on an identical issue.''
Finally, on issues affecting workers, consumers and
personal injury victims, Judge Southwick rules overwhelmingly
in favor of employers and corporations. We question his
ability to be a fair and impartial decision-maker in these
cases as well. Mississippians need to be confident that they
will receive equal justice before the federal courts.
Respectfully yours,
Derrick Johnson,
President.
____
Congressional Black Caucus,
Washington, DC, June 6, 2007.
Hon. Patrick J. Leahy,
Russell Senate Office Building,
Washington, DC.
Hon. Arlen Specter,
Hart Senate Office Building,
Washington, DC.
Dear Mr. Leahy and Mr. Specter: We write to be clear
concerning the strong opposition of the Congressional Black
Caucus to moving Leslie Southwick, formerly of the
Mississippi Court of Appeals, through committee for the Fifth
Circuit Court of Appeals. We are enclosing the press release
that the Caucus issued just before Memorial Day recess asking
that Leslie Southwick not be listed for a vote in committee.
We understand that, nevertheless, Mr. Southwick may have a
vote in committee on Thursday, June 7, 2007. We are
astonished that the committee would seriously consider this
nominee on a circuit that hears cases affecting more Blacks
and Hispanics than any circuit in the country. Mr.
Southwick's long record, revealing inexcusably insensitive
and hostile views on race and on other issues that have
directly harmed people of color, should spell the end of his
consideration for the Fifth Circuit.
The enclosed release mentions the most obvious and overt
racial example, involving Mr. Southwick's concurrence in
Richmond v. Mississippi Department of Human Services, 1998
Miss. App. LEXIS 637 (Miss. Ct. App. 1998), allowing the use
of a racial slur that was unanimously overruled, but
importantly refers to many other areas of equally deep
concern to us because they involved average Mississippi
residents who typify the Black, Hispanic, and white residents
of the Circuit.
Mr. Southwick's record provides nothing less than a case
study of a judge with a closed mind and fixed far-right
views. In no area of law have we been able to find decisions
that did not seem to be entirely predicted by an ideological
predisposition. We believe that the committee should be
impressed by the frequency with which Southwick's opinions
and concurrences have been overruled. Our investigation of 10
years of Southwick decisions reveals a one-sided animus
against workers and consumers, in particular, with rulings
almost always favoring business and insurance interests and
almost never for working people and consumers.
[[Page S13246]]
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. The Southwick
decisions show a remarkable predisposition to rule for whites
alleging improper use of peremptory challenges and against
Blacks who make similar allegations regarding peremptory
challenges. Nothing could be more disturbing today,
considering that Congress has allowed racially unfair
mandatory minimums and sentencing guidelines to remain in
tact, virtually destroying a generation of African American
men. Rep. Bennie Thompson's Mississippi constituents were
profoundly and negatively injured during Southwick's tenure
in virtually every area of state law. We ask that you avoid
elevating Leslie Southwick to the U.S. Court of Appeals for
the Fifth Circuit, where he is likely to do the same harm to
residents of three states--Texas, Louisiana, as well as
Mississippi.
We want to be clear that the Congressional Black Caucus
could not be more troubled by the transformation of the Fifth
Circuit by judges that make it difficult to believe in the
fairness, balance and openness of the judiciary. Five members
of the CBC represent constituents in this circuit, the
largest number members in anyone circuit. The Fifth Circuit
presides over the largest percentage of minority residents
(44%) of any circuit and Mississippi has the highest African-
American population (36%) of any state in the country. We
therefore would take very seriously the reach to place yet
another farright judge with offensive racial views on the
Fifth Circuit so late in President Bush's last term. We ask
that you reject Leslie Southwick.
Sincerely,
Carolyn C. Kilpatrick,
Chairperson, Congressional Black Caucus.
Bennie Thompson,
CBC Member--Mississippi.
Mr. LEAHY. I retain the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I urge my colleagues to vote to cut off
debate--that is, to invoke cloture--on the pending nomination of Judge
Leslie H. Southwick for the U.S. Court of Appeals for the Fifth Circuit
and then to vote to confirm him.
Judge Southwick comes to this nomination with an outstanding record.
He received his bachelor's degree cum laude from Rice University and a
J.D. from the University of Texas law school in 1975.
He was a law clerk for Judge John Onion, Jr., of the Texas Court of
Criminal Appeals. He was a law clerk for Judge Charles Clark of the
Fifth Circuit Court of Appeals. He practiced law from 1977 through
1989. He was a Deputy Assistant Attorney General for the U.S.
Department of Justice, Civil Division, from 1989 to 1993. He has been a
judge on the Mississippi Court of Appeals, which is an intermediate
court, for some 12 years.
Judge Southwick has participated in about 6,000 cases and has
personally authored some 985 opinions.
In a very remarkable move, when Judge Southwick was 53 years old--he
had been in the Army Reserve since he was 42, when he obtained an age
waiver in order to join the Army Reserve--and in the year 2003, when he
was 53 years old, he volunteered to transfer to a line combat unit. He
was deployed to Iraq, serving as a staff judge advocate in forward
operating bases near Najaf.
Major General Harold Cross, Judge Southwick's commanding officer,
said:
This was a courageous move; as it was widely known at the
time that the 155th was nearly certain to mobilize for
overseas duty in the near future.
Judge Southwick was voted out of the Judiciary Committee on August 2
of this year on a bipartisan basis with a favorable recommendation.
Judge Southwick's critics have pointed to only two cases--where he
was in a concurrence and did not write the opinions. One case involved
the issue of the punishment for someone in Civil Service who used a
very derogatory racial term. When that case was reviewed, it was
decided that since the individual had made only an isolated remark, and
immediately apologized, that it would be excessive to fire that person
but that the penalty should be something less. That case was reviewed
by the Mississippi Court of Appeals on a very constricted standard as
to whether the finding was arbitrary and capricious--which is a very
high standard--and that applicable standard determined that firing was
excessive.
The case then went to the Supreme Court of Mississippi, and it agreed
with the appellate court's conclusion that the dismissal was
unwarranted. In this case they said:
[w]e find that the harsh penalty of dismissal . . . from
her employment is not warranted under the circumstances.
Now, I emphasize that in both of these cases, Judge Southwick did not
write the opinions but only concurred in the result. While some might
say it would have been preferable to take a different position, in the
context of deciding some 6,000 cases and having written some 985
opinions, that is very little to pick at.
The second case was a matter where the issue of custody came up.
After an extensive hearing, the trial judge awarded custody to the
father, and there was a reference to the fact that the mother was a
lesbian. Here again, the references in the opinion--again, not written
by Judge Southwick--might have been somewhat more sensitive. In the
overall context, it is hardly the basis for denying confirmation to
Judge Southwick.
I met with Judge Southwick at length, had a long talk with him about
his approach to the judiciary, about his legal background. He is a very
mild-mannered, very temperate man, who on the credentials, in black and
white, has an outstanding record and in person was very impressive.
It is worth noting that a number of former African-American clerks
have spoken out in solid support of Judge Southwick.
La'Verne Edney, a distinguished African-American woman who is a
partner at a prominent Jackson, MS, law firm and a member of the
Magnolia Bar Association, the Mississippi Women Lawyers' Association,
and a member of the Mississippi Task Force for Gender Fairness, stated
this:
When I finished law school . . . I believed that my chances
for landing a clerkship were slim because there was only one
African-American Court of Appeals judge on the bench at the
time and there were very few Caucasian judges during the
history of the Mississippi Supreme Court or the Court of
Appeals . . . who had ever hired African-American law clerks.
. . .While Judge Southwick had many applicants to choose
from, he saw that I was qualified for the position and
granted me the opportunity.
As a clerk, Ms. Edney observed:
It did not matter the parties' affiliation, color or
stature--what mattered was what the law said and Judge
Southwick worked very hard to apply it fairly.
Patrick Beasley, a practicing attorney in Jackson, MS, who also is
African American, endorsed Judge Southwick for his quality of being
fair to minorities. Mr. Beasley wrote:
I speak from personal experience that Leslie Southwick is a
good man who has been kind to me for no ulterior reason. I am
not from an affluent family and have no political ties. While
I graduated in the top third of my law school class, there
were many individuals in my class with higher grade point
averages and with family ``pedigrees'' to match. Yet, despite
all of the typical requirements for the clerkship that I
lacked, Judge Southwick gave me an opportunity. Despite
[those who criticize him], Judge Southwick is a fair man and
this is one of the qualities that makes him an excellent
choice for the Fifth Circuit. . . .
Judge Southwick has ruled numerous times in favor of workers, the so-
called little guy.
For example, in Sherwin Williams v. Brown, Judge Southwick held that
a 45-year-old carpet layer was permanently and totally industrially
disabled due to an onsite injury and that the carpet layer made
reasonable efforts to obtain other employment.
In United Methodist Senior Services v. Ice, Judge Southwick affirmed
the award of workers' compensation benefits to a woman who hurt her
back while working as a certified nursing assistant, despite her first
employer's claim that she exacerbated the injury during her subsequent
employment.
In Kitchens v. Jerry Vowell Logging, Judge Southwick reversed the
Workers' Compensation Commission's decision that a truck driver from a
logging company did not suffer a permanent loss of wage earning
capacity and remanded the case for further consideration.
In McCarty Farms, Inc. v. Caprice Banks, Judge Southwick concurred
with an opinion affirming the Workers' Compensation Commission's award
of permanent partial disability benefits for a woman who experienced a
70-percent industrial disability to her right arm and a 30-percent loss
to her left.
Indeed, contrary to some suggestions, Judge Southwick has spoken out
in dissent in favor of workers' rights.
[[Page S13247]]
In Total Transportation Inc. v. Shores, Judge Southwick joined with
three other dissenters in a 6-to-4 decision, which would have upheld an
award of workers' compensation benefits for a truck driver's widow,
while the majority ruled in favor of the employer.
In Burleson v. Hancock County Sheriff's Department--a 6-to-3
decision--Judge Southwick wrote a dissent in which he argued that a
public employee was improperly terminated without sufficient due
process under the U.S. Constitution, while the majority ruled in favor
of the employer.
Judge Southwick has ruled in favor of tort victims and against
businesses in many cases. Illustrative are Ducksworth v. Wal-Mart
Stores, Breland v. Gulfside Casino Partnership, Martin v. BP
Exploration & Oil, and Wilkins v. Bloodsaw.
Mr. President, I ask unanimous consent that a description of these
cases be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
In Ducksworth v. Wal-Mart Stores, Judge Southwick joined
his colleagues in reversing the trial court's directed
verdict against a customer who had slipped on an unknown
substance at a Wal-Mart.
In Breland v. Gulfside Casino Partnership, Judge Southwick
joined an opinion for the court that reversed summary
judgment for a casino in a slip and fall action brought by a
patron who had suffered multiple injuries falling down the
casino's staircase.
In Martin v. BP Exploration & Oil, Judge Southwick joined
his colleagues in reversing summary judgment against a
plaintiff who injured her ankle upon exiting a gas station's
restroom on an allegedly poorly constructed access ramp.
In Wilkins v. Bloodsaw, Judge Southwick joined an opinion
for the court that reversed a grant of summary judgment in
favor of a Pizza Hut, which was sued by a mother who was
injured when her disabled son fell as she tried to help him
exit the restaurant.
Mr. SPECTER. Judge Southwick has voted in favor of criminal
defendants on numerous occasions, often in dissent. I cite a series of
cases: Jones v. State, Parker v. State, Mills v. State, and Harris v.
State, and ask unanimous consent that a description of these cases be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
In Jones v. State (a 5-5 decision), Judge Southwick
dissented, arguing for reversing a conviction because the
indictment did not provide the defendant with sufficient
clarity and specificity to know with certainty what crime was
being charged.
In Parker v. State (a 6-4 decision), Judge Southwick
dissented (in an opinion joined by some of his Democratic
brethren), arguing that a murder conviction should be
reversed because the trial judge failed to give a proper jury
instruction.
In Mills v. State (a 6-3 decision), Judge Southwick
dissented from the majority opinion affirming a drug
conviction on the grounds that the court should not have
admitted a statement by the defendant's four-year-old son,
and the state failed to disclose a piece of evidence against
the defendant that it had in its possession.
In Harris v. State (a 5-4 decision), Judge Southwick
dissented from the majority opinion affirming a DUI
conviction on the grounds that the trial court erroneously
allowed the state to avoid proving all the elements charged
in the indictment.
Mr. SPECTER. Further, Judge Southwick has voted in favor of the so-
called underdogs. The suggestion that he is biased against women and
homosexuals is contradicted by a number of cases: Curtis v. Curtis,
Kmart Corp. v. Lee, Hughey v. State of Mississippi. Again, I ask
unanimous consent that a description of these cases be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
In Curtis v. Curtis, Judge Southwick wrote for a divided
court and upheld the trial court's grant of divorce in favor
of the wife on the grounds of adultery. The dissent would
have reversed and remanded.
In Kmart Corp. v. Lee, Judge Southwick wrote an opinion
upholding the lower court's decision to award $500,000 to a
woman who slipped on antifreeze in a Kmart. Judge Southwick
sympathized with the woman, stating: ``Before the fall, Lee
was a hard working, independent woman who was able to take
care of many problems at the apartment complex she managed
herself. . . . now she is unable to work a full day . . .''
In Hughey v. State of Mississippi, Judge Southwick affirmed
the trial court's decision to disallow cross-examination as
to the victim's sexual preference. He recognized that whether
the victim was homosexual was not relevant to the defense and
that such a line of inquiry would produce undue prejudice.
Mr. SPECTER. That is a very short statement of the qualifications of
Judge Southwick. I believe if Judge Southwick were under consideration
for any circuit court of appeals except for the Fifth Circuit--which
has had a history of difficulties in obtaining confirmation and has had
an overtone of concern about civil rights--if he were up for any other
circuit, there would be no hesitancy.
This man ought to be judged on the basis of his own record and his
own qualifications. But he has demonstrated fairness and an
appreciation for the rule of law and for equality regardless of race,
color, creed and regardless of standing and has been willing to stand
up for plaintiffs in tort cases and defendants in criminal cases and,
as stated earlier, women and those of a different choice of sexual
orientation, so that on the record he is deserving of confirmation.
It is my hope he will be judged as an individual. That is the
American way. By that standard, he certainly would be confirmed.
Mr. President, how much time did I consume in my speech?
The PRESIDING OFFICER. The Senator has consumed 14 minutes.
Mr. SPECTER. I thank the Chair.
I now yield 20 minutes to the distinguished Senator from California
and then 10 minutes to the Senator from Mississippi, Mr. Lott. And if
Senator--
Mr. CARDIN. Mr. President, there are still some requests on our side
for time. I would hope we would have a chance--
Mr. SPECTER. Mr. President, I ask Senator Cardin, how much time would
the Senator like?
Mr. CARDIN. Mr. President, I will be speaking for about 10 minutes.
Mr. SPECTER. Mr. President, 10 minutes to Senator Cardin. And if
Senator Cochran desires time: unlimited time, if he so desires.
Mr. COCHRAN. Five minutes.
Mr. SPECTER. Mr. President, Senator Cochran asks for 5 minutes.
I thank the Chair and yield the floor.
Mr. CARDIN. Mr. President, parliamentary inquiry: I was under the
impression that time was divided between the proponents and opponents.
The PRESIDING OFFICER. The Senator is correct.
Mr. SPECTER. Mr. President, may I inquire if Senator Cardin is
speaking in opposition?
Mr. CARDIN. Mr. President, I will be speaking in opposition to the
nomination.
Mr. SPECTER. Mr. President, I think Senator Cardin needs his time
from Senator Leahy, but I am sure there would be no difficulty in
having 5 minutes.
Mr. CARDIN. I understand that. I wonder if we would follow the normal
practice of allowing those in opposition to be able to speak in regular
order rather than having to wait for the time.
Mr. SPECTER. I ask the Senator, do you want to speak now?
Mr. CARDIN. Yes, I would prefer to have an opportunity to speak.
Mr. SPECTER. I think that would be acceptable, if it is OK with the
Senator from California.
Mrs. FEINSTEIN. That is fine.
Mr. SPECTER. Mr. President, I ask consent that Senator Cardin be
recognized now and then Senator Feinstein be recognized next, and if
others appear, it is appropriate, as Senator Cardin suggested, that we
alternate.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. I thank Senator Specter for the courtesy. I notice
Senator Leahy is not on the floor, and I appreciate my colleague from
Pennsylvania organizing the debate on the floor.
I appreciate that.
This is a unique body, the Senate of the United States. One of our
most important responsibilities is the advice and consent on
Presidential appointments on the confirmation of Federal judges. The
Constitution envisions that we will use independent judgment in order
to make these decisions. Article III, section 2, clause 2 of the
Constitution gives us the power to confirm Federal judges.
I know all of my colleagues know these are lifetime appointments, so
this is our one chance in order to evaluate those who will serve as
Federal judges. We are talking about the U.S. Court of Appeals. For
most Federal cases, this will be the final decision on a case that is
brought in the
[[Page S13248]]
Federal court. Very few in percentages of the cases reach the Supreme
Court of the United States. So the Court of Appeals is responsible for
much of our laws in this country as far as the final judicial
determination.
When I sought to become a Member of this body, I went over with the
people of Maryland the standards I would use in trying to decide
whether to vote to confirm a judge. I talked about judicial temperament
and experience, but I also talked about a standard that I think is very
important, which is a judge's or potential judge's passion for the
Constitution of this country in order to protect every individual. I
think it is important that we take a look at that, particularly when we
talk about an individual who will serve on the U.S. Court of Appeals.
I have sat in the confirmation hearings. I am a member of the
Judiciary Committee. I had a chance to listen to Judge Southwick. I had
a chance to listen to the questions that were posed back and forth. I
must tell my colleagues I cannot support this confirmation. I will vote
against it, and I would like to give the reasons why.
Senator Specter talked about some of the opinions that Judge
Southwick participated in or some of his rulings, and I think that is
what we should be looking at. For Judge Southwick, we do have an idea
about his passion for the Constitution and what his priorities will be
by looking at the type of cases he ruled on, the opinions he joined,
and the opinions he wrote. So let me talk about the two opinions
Senator Specter raises, because I think they are important opinions in
order to get some insight as to this judge's passion for the
Constitution.
The 1998 case of Richmond v. Mississippi Department of Human Services
was an important case. It was very offensive to not just the minority
community but the entire community. The racial term that was used
should never be used, as Senator Leahy said, in the workplace or
anyplace else. The dissent of that opinion, of that decision, got it
right, where it said that the racial epithet is inherently offensive
and its use establishes the intent to offend. Unfortunately, that was
the minority opinion in that court. On appeal it was overturned, but
Judge Southwick joined the majority. The rationale in the majority
opinion I think is important, because it speaks to what Judge Southwick
used to reach his conclusions. In that opinion he said the absence of
evidence of a near race riot, the remark is too inconsequential to
serve as a basis of dismissal.
I find that very offensive. I think we do have to be held accountable
to where we allow our name to be added. Fortunately, as I said, that
was corrected, but it took an appellate court to do that.
In 2001, we have S.B. v. L.W. where a 12-year-old child is taken away
from her mother. It was done because she was a lesbian. The language in
the opinion is very offensive. It talks about a homosexual lifestyle,
words that I think we all know bring out bigotry in our society. But
Judge Southwick went further in that case. He joined a concurring
opinion that said your sexual orientation is a matter of choice and any
adult may choose any activity in which to engage. That person is not
thereby relieved of the consequences of his or her choice.
No wonder Judge Southwick is being challenged by many respected
national groups. Upon questioning within our committee on confirmation,
I didn't get a sense that there was a retraction by Judge Southwick of
these decisions. He stuck by the decisions.
At the confirmation hearing, Senator Durbin asked him a pretty simple
question. He asked him a question about whether during his life or
career, he ever took an unpopular point of view on behalf of those who
were powerless or vulnerable and needed someone to stand up for their
rights when it was not a popular position. That, to me, is a softball
question: When did you stand up for someone else's rights? Judge
Southwick couldn't think of a single example throughout his entire
career.
So there is no wonder that there is concern about whether this
potential judge on the court of appeals will protect all of our rights
as the cases come before him and why there is so much concern about his
confirmation.
But I want to go on to another issue that Senator Leahy raised, and
that is the issue of diversity. Diversity is very important. We expect
all of our citizens will live according to the rule of law and will
have confidence that the laws we make and the Court's rulings on those
laws will be fair to all communities, so they have a right to expect
that there will be equal access to participation in all branches of
Government. Looking at the record in the Fifth Circuit, there is reason
for concern. The Fifth Circuit is Mississippi, Louisiana, and Texas--
the highest percentage of minority population in the country of any
circuit outside of the District of Columbia--44 percent minority. Of
the 10 nominees President Bush has submitted to the Federal bench from
Mississippi and the Fifth Circuit--10--none have been African American.
Mississippi has the largest percentage of African Americans of any
State in the Nation: 36 percent. Of the 19 Federal judges on the Fifth
Circuit, only one is African American. These are important issues to
the people of that circuit and to the people of this country.
So there are many organizations that are opposing Judge Southwick's
nomination. I ask unanimous consent that the letters of opposition and
concern from the J. Franklin Bourne Bar Association and the National
Organization for Women, the Legal Momentum, and the Jewish Alliance for
Law and Social Action be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
J. Franklyn Bourne
Bar Association, Inc.,
Upper Marlboro, MD, June 7, 2007.
Re: Nomination of Leslie Southwick.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senator Leahy: The J. Franklyn Bourne Bar Association,
Inc. opposes the nomination of Leslie Southwick to the United
States Court of Appeals for the Fifth Circuit.
Established in 1977, the Bourne Bar was formed to advance
the status of African-American attorneys who work and/or live
in Montgomery and Prince George's Counties, Maryland. The
organization is named in honor of the Honorable J. Franklyn
Bourne, the first African-American District Court judge in
Prince George's County. The Bar Association's mission
includes assisting in the development of African-American
communities through the vehicle of law, educating the general
public about legal issues of concern to all, and insuring the
continuation of African-Americans in the legal profession. It
is in the spirit of our mission that we register our
opposition to the Leslie Southwick's nomination.
A representative democracy is a must in a free society, and
as such the residents of the state of Mississippi, Texas and
Louisiana are deserving of a federal judiciary that reflects
the composition of their respective citizenry. More
importantly, as federal judgeships are lifetime positions,
each candidate for such an appointment must he closely
scrutinized. Judge Southwick's pattern of approving
preemptory challenges that exclude Blacks from juries while
approving challenges when whites allege discrimination from
such challenges is particularly troubling; so to is the
decision Judge Southwick joined in the case Richmond v.
Mississippi Department of Human Services which would have
reinstated a white woman who used the phrase ``good ole
nigger'' about an African American coworker.
The Senate Judiciary is constitutionally tasked with the
responsibility of approving nominations by the President
following fair deliberations. In that regard, the Bourne Bar
Association is confident that its opposition outlined above
will be duly noted.
Thank you for your attention.
Sincerely,
Abigale Bruce-Watson,
President.
____
National Organization for Women,
Washington, DC, June 6, 2007.
Senator Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: The National Organization for Women
strongly opposes the nomination of Leslie Southwick to the
U.S. Court of Appeals for the Fifth Circuit. We urge you to
oppose this nomination both in the Judiciary Committee and on
the floor of the Senate.
Judge Southwick has a disturbing record and an appalling
lack of sensitivity on women's rights, racial justice, and
discrimination based on sexual orientation. He demonstrates
the usual Bush nominee bias toward big business and against
consumers and individuals.
In the 2006 election, the voters clearly rejected right
wing extremism. The National Organization for Women expects
that those Senators who were elected by the votes of women
will take their ``advise and consent'' role seriously and not
put our rights in jeopardy by confirming such an individual
to one of the highest courts in the land.
[[Page S13249]]
As we have learned from many past judicial battles, a
``yes'' vote in committee which allows a nomination to reach
the floor of the Senate is tantamount to a vote for
confirmation regardless of a subsequent ``no'' vote on the
floor. We urge you to stand firm and to vote to stop this
nomination in its tracks--in the Judiciary committee.
Sincerely,
Kim Gandy,
NOW President.
____
Jewish Alliance for Law and
Social Action
Boston, MA, June 8, 2007.
Re Maintaining an Independent Judiciary
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: As an organization devoted to upholding
constitutional protections against racial and religious
discrimination, we write to urge that you and your colleagues
on the Judiciary Committee and in the Senate oppose the
appointment to the Fifth Circuit Court of Appeals of Leslie
Southwick.
Judge Southwick has demonstrated his disdain for equal
rights and equal protection under the law. While on the
Mississippi State Court of Appeals, he joined a decision that
upheld the reinstatement, without any punishment whatsoever,
of a white state employee who was fired for calling an
African American co-worker a ``good ole nigger'', finding
that this was not an offensive term. In another case, Mr.
Southwick went out of his way to go beyond the majority
decision against a lesbian mother, in a concurrence that was
not only gratuitous but gratuitously anti-gay.
While the current President has tried to fill this seat on
the Fifth Circuit with other appointees equally out of the
mainstream, this is the first nomination since the Democratic
Party has regained its Congressional majority. Now is the
time to deliver a strong message that Democrats will protect
the American people, the Constitution and the judiciary from
the prospect of even more extremist right wing judges who
will continue to undermine the judiciary's crucial role in
preserving our bedrock constitutional protections.
We at JALSA urge you not only to reject this nomination but
to do so in a way that makes clear that the Senate will
protect the independence of the judiciary, and will no longer
allow this administration to pack the courts in order to
legislate an extremist agenda of bigotry and hatred.
Yours truly,
Andrew Fischer,
Chair, Judicial Nominations Committee.
____
Legal Momentum,
Washington, DC, June 7, 2007.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee,
Washington, DC.
Hon. Arlen Spector,
Ranking Member, Senate Judiciary Committee, Washington, DC.
Chairman Leahy and Ranking Member Specter: On behalf of
Legal Momentum, the nation's oldest advocacy organization
that works to define and defend the rights of women and
girls, I urge you to oppose the nomination of Judge Leslie
Southwick to the US Court of Appeals for the 5th Circuit.
While much of Judge Southwick's record remains unknown due to
lack of publishing and incomplete Committee records, what has
been revealed is disheartening for those who look to the
federal courts to uphold and enforce laws barring
discrimination on the basis of race, sex, national origin and
religion.
Historically, the 5th Circuit Court of Appeals has served
as a bulwark for the protection of civil rights. However,
Judge Southwick displays a continued absence of dedication to
upholding certain essential civil rights protections. In the
case of Richmond v. Mississippi Department of Human Services,
1998 Miss. App. LEXIS 637 (Miss. Ct. App. 1998), reversed,
745 So. 2d 254 (Miss. 1999), Judge Southwick joined a 5-4
ruling upholding the reinstatement of a white state social
worker, Bonnie Richmond, who had been fired for referring to
an African American co-worker as ``a good ole n*****'' at an
employment-related conference. The Mississippi Supreme Court
unanimously reversed this ruling. Similarly, Judge
Southwick's rulings on race discrimination in jury selection
give us pause. A review of his decisions reveals a disturbing
pattern in which Judge Southwick routinely rejects defense
claims regarding racially motivated prosecutors who strike
African-American jurors but upholds claims of prosecutors
that defense attorneys are striking white jurors on the basis
of their race. The 5th Circuit, which includes Louisiana,
Mississippi and Texas, has the highest concentration of
racial and ethnic minorities in the country. There is no room
at any level of the judiciary for Southwick's troubling and
seemingly biased approach to the enforcement of civil rights
laws.
In another case, S.B. v. L W, 793 So.2d 656 (Miss. App. Ct.
2001), Judge Southwick wrote a separate concurring opinion
positing that a ``homosexual lifestyle'' could be used to
deprive a parent of the custody of her own child. His
concurrence, a unwarranted and hurtful piece of work, took
great pains to elaborate upon the punitive ``consequences''
that could be imposed on individuals in homosexual
relationships, including the loss of custody of a child.
Grounding his beliefs in the principles of ``federalism'', he
promoted limiting the rights of gay and lesbian parents in
the area of family law and characterized the participation in
a homosexual relationship as a ``choice'' and an ``exertion
of a perceived right.''
Discussing an issue not raised by either party in the case
and citing incomplete legal analysis, the concurrence also
identified a policy position of the Mississippi legislature
that would limit the custody rights of homosexual parents.
His opinion cited the Supreme Court's decision in Bowers v.
Hardwick, which upheld criminal penalties for sodomy, but
ignored the more recent decision in Romer v. Evans, in which
the attempt to deny anti-discrimination protections to gays
and lesbians via ballot initiative was found not to further a
proper legislative end, but deemed a means to make them
unequal and consequently struck down. His contorted and
selective analysis showcases a distinct lack of the judicial
impartiality necessary in appeals court judges.
Lastly, we cannot accept the possibility that there are no
qualified African-Americans to serve on this Circuit's Court
of Appeals. President Bush's glaring lack of racially diverse
nominations remains unfathomable, and unacceptable to our
organization, specifically in a region that displays such a
long history of racial apartheid and disenfranchisement and
continues to need integration at every level, particularly in
the federal judiciary.
Given the arguments listed above, it is clear that the
Senate Judiciary Committee must defeat Judge Southwick's
nomination. He does not possess the requisite abilities to
merit a life-tenured position in the federal judiciary. In
rejecting Southwick's nomination, please urge President Bush
to nominate a well-qualified individual with the appropriate
judicial temperament to dispense justice as intended by our
Constitution and a demonstrated respect for fundamental
constitutional rights.
Sincerely,
Lisalyn R. Jacobs,
Vice-President for Government Relations.
Mr. CARDIN. Mr. President, I am going to quote very briefly from the
letter from the Bourne Bar Association where it says:
A representative democracy is a must in a free society, and
as such the residents of the State of Mississippi, Texas, and
Louisiana are deserving of a Federal judiciary that reflects
the composition of their respective citizenry.
Ten nominees from this area; none African American.
The National Organization for Women states:
Judge Southwick has a disturbing record and an appalling
lack of sensitivity on women's rights, racial justice, and
discrimination based on sexual orientation.
The Jewish Alliance for Law and Social Action:
Judge Southwick has demonstrated his disdain for equal
rights and equal protection under the law.
So I am not convinced Judge Southwick is the best that we can find
for the court of appeals. I am not going to give the President a blank
check, and I will vote against the confirmation of Judge Southwick.
Once again, I thank my friend from Pennsylvania for his courtesy.
Mrs. BOXER. Mr. President, I plan to vote against cloture on the
nomination of Judge Southwick, and, if cloture is invoked, against the
nomination itself.
The Fifth Circuit serves one of the most racially diverse regions in
the country. It is especially important, therefore, that a nominee to
this court possess an unshakable commitment to equal justice and a
willingness to protect the rights of all. Unfortunately, President Bush
has chosen a nominee who does not pass this simple test.
During his tenure with the Mississippi State court, Judge Southwick
joined a ruling that reinstated a State employee who used a very
charged racial slur about another worker. That decision was unanimously
reversed by the Mississippi Supreme Court. In another case, Judge
Southwick joined in an opinion that took into consideration the sexual
orientation of a mother rather than her love for her child when
deciding to deny her custody. On other occasions, he voted against the
concept of ``a jury of our peers.''
I am deeply disappointed that President Bush has once again attempted
to fill the Fifth Circuit vacancy with a nominee holding views far to
the right of most Americans, and I do not support the nomination of
Judge Southwick to the Fifth Circuit.
I yield the floor.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I too rise to discuss the nomination
of Judge Leslie Southwick and to explain why I will vote in favor of
cloture and in favor of confirming him to the Fifth Circuit Court of
Appeals.
[[Page S13250]]
There has seldom been an appellate nominee to whom I have given more
thought than I have given to Judge Southwick. I am very much aware of
the concerns many on my side of the aisle, in the House of
Representatives, and in the community feel.
I have reviewed Judge Southwick's record and the transcript of his
confirmation hearing. I have read the many letters, both pro and con,
and I have spent about an hour or more talking with him in person.
What emerged for me was an understanding that Judge Southwick is a
qualified, sensitive, and circumspect person. I think the personal
qualities of an individual often get lost in our debates about judicial
nominees. These nominees are not just a collection of prior writings or
prior judicial opinions. They are, first and foremost, people; and the
kind of person they are is, in fact, important. In my conversations
with Judge Southwick, I have gotten a sense of the type of person that
I believe him to be. He is not either insensitive or a racist but one
who is thoughtful and analytical and a strong believer in the law. As
an appellate court judge, he evaluates the specific legal issues of the
case before him, not necessarily the veracity of the parties involved
as would a trial judge.
I know some of my colleagues are opposed to this nomination. Concerns
have been raised about his judicial record, particularly with regard to
civil rights and the rights of gays and lesbians. I assure my
colleagues that I have taken these concerns seriously. I gave them
careful consideration and made my best judgment, which is all any of us
can do.
While I respect the views of my colleagues who oppose this
nomination, I also respectfully disagree. I think Judge Southwick made
mistakes by concurring in the two opinions in question, but I don't
think those rulings define his views. I don't believe they outweigh the
other factors that suggest Judge Southwick should be confirmed.
As I see it, there are three factors that weigh in favor of
confirmation. They are:
First, the qualifications and character of the judge himself;
Second, the need to fill this long-time vacancy in the Fifth Circuit
which the judicial branch has designated as a judicial emergency;
And third, my very strong belief that when a future Democratic
President sends up a judicial nominee who becomes controversial, the
test should be whether the nominee is within the judicial mainstream
and is qualified by education, experience, and temperament to be a
sound judge or Justice in the Federal court system of our great
country.
When I weighed those factors against the concerns I have heard, I
decided to vote in favor of Judge Southwick in committee. They also
will form the basis for my vote on Judge Southwick tomorrow.
The first factor I wish to address is his qualifications and
character. I don't think anyone disagrees that Judge Southwick is an
experienced appellate court judge. He sat on the State court of appeals
in Mississippi for 11 years, from January 1995 to December of 2006. He
has heard roughly 7,000 appeals.
How many judges have we confirmed without nearly that kind of
experience? This is a large number of cases.
There is no organization better positioned to evaluate the
performance of judges in Mississippi than the Mississippi State bar,
and they awarded Judge Southwick their Judicial Excellence Award in
2004, after he had been on the State court bench for 10 years. That
award describes him as: ``A leader in advancing the quality and
integrity of justice,'' and as ``a person of high ideals, character,
and integrity.''
Isn't that the kind of judge we want to see on the bench?
I think those views from the bar association from his home State are
important. I also think it is significant that the American Bar
Association, which evaluates every judicial nominee that comes to the
Senate for confirmation, unanimously rated Judge Southwick ``well
qualified''--their highest rating. In fact, the evaluation by the ABA
for him to serve on the Fifth Circuit is stronger than it was when he
was nominated to a district court last year.
For that nomination, the ABA was not unanimous in finding him ``well
qualified.'' But they were for the appellate court.
The Judiciary Committee approved that nomination, but the 109th
Congress ended without further action on it. Now, Judge Southwick
stands before us with a unanimous recommendation for the Fifth Circuit
from the ABA.
I am also impressed, as Senator Specter spelled out, by his record of
military service to our country. I find it singular among the judges in
the 15 years I have served on the Judiciary Committee.
This judge joined the U.S. Army Reserves in 1992 at the age of 42. To
do that, he had to get an age waiver.
How many would do that?
He had already achieved professional success as a lawyer. At the
time, he was serving as the Deputy Assistant Attorney General in the
Civil Division of the Department of Justice. Still, he felt a sense of
duty to his country, and he did not let his age or his promising
civilian legal career stop him.
He volunteered in 2004 for a unit that was going to be deployed to
Iraq. That unit, the 155th Brigade Combat Team, was, in fact, deployed,
and he was with it.
Judge Southwick was 53 years old at the time. He had a wife and
family and a prestigious job as a judge on the State court of appeals.
Yet, from January to December 2005, he served in Iraq--first as a
Deputy Staff Judge Advocate at Forward Operating Base Duke, and then as
Staff Judge Advocate for the 155th Brigade at Forward Operating Base
Kalsu.
How many judges have done that? Shouldn't that count for something?
Well, it counts to me, Mr. President. To me, it is a clear indication
of the character of the man, and I deeply respect him for this military
service.
The second factor that is important, in my judgment, is the need to
fill this vacancy on the Fifth Circuit. It has been vacant for 7 out of
the last 8 years. Judge Southwick is the third nominee for the
position--not the first or the second, but the third.
The vacancy opened in August 1999--7 years ago--and went unfilled for
more than 4 years. Then, in 2004, the President used a recess
appointment to place Charles Pickering on the bench. The Senate did not
confirm Judge Pickering to the seat, and since the end of 2004, it has
been vacant again. Michael Wallace was nominated for it, but that
nomination wasn't approved by the Judiciary Committee.
So at this time the Administrative Office of the U.S. Courts has
declared this seat to be a ``judicial emergency.''
Now, I am not suggesting that we should confirm whomever the
President nominates just because a seat has been vacant for a long
time, or because the seat has been designated a judicial emergency. But
I hope this urgent need to fill a longtime vacancy will help tip the
balance in the nominee's favor. By any measure, 7 years is too long for
a vacancy to remain open.
The third factor that weighs in favor of confirmation for me is my
strong belief that we have seen too much delay and controversy over
qualified nominees for too many years.
There are plenty of examples of long delays in the confirmation
process when President Clinton was in office and the Senate was under
the Republican control. For example, when Ronnie White had the support
of Senator Bond and was voted favorably out of the Judiciary Committee
twice, it took more than 2\1/2\ years for the nomination to come to the
floor, and then the nomination was rejected.
William Fletcher was a well-qualified Ninth Circuit nominee in the
1990s. Unlike Judge White, at least Judge Fletcher was confirmed by the
Republican Senate--thanks in large measure to Senator Hatch--but not
until he had waited for 3\1/2\ years.
During that period of time, I had calls from prospective judges,
saying: I don't know what to do. Do I stay the course, or withdraw?
What do I do about my family? These are real problems and we ought to
respond to them.
I also share the views of my colleague, Senator Lott, that we must
improve the confirmation process. He recently wrote an op-ed column in
which he explained his vote to confirm Justice Ruth Bader Ginsburg to
the Supreme Court. Since the Senator is sitting here, let me quote him:
I probably wouldn't agree with Justice Ginsburg on any
philosophical issue, but she
[[Page S13251]]
was qualified to serve by education, experience, and
temperament. Elections have consequences, and she had
President Clinton's confidence.
That is the way it was. I have used the same analysis to arrive at my
position on Judge Southwick. I probably would not agree with him on
certain philosophical issues, but I think he is qualified to serve by
education, by experience, and by temperament.
Critics of this nomination have pointed to two opinions: one that
reinstated an employee who had been fired for using an egregious racial
slur, and another that denied a woman custody of her child for reasons
that included--but were not limited to--her involvement in a same-sex
relationship.
These are 2 opinions out of 7,000 cases that he heard or that he sat
on. They are opinions he joined, not ones he wrote. One was a majority
opinion joined by four other judges on his court, and one was a
concurring opinion in a case where he also joined the majority opinion.
Ultimately, the case involving the racial slur was reversed by the
State supreme court and remanded for consideration of a different
penalty. The ruling of Judge Southwick's court in the child custody
case apparently was not appealed to the State's high court.
Critics of Judge Southwick have also pointed to certain rulings that,
in their view, suggest that Judge Southwick will be hostile to
workers, minorities, and those who lack power and privilege in our
society. These are serious concerns. But I don't think these cases
accurately reflect Judge Southwick's views. This is only my best
judgment, based on my own discussions with him.
The racial slur case, Richmond v. Mississippi Department of Human
Services, involved, as has been stated, a State employee who had used a
racial slur in reference to an African-American coworker. The State
agency fired the employee, and she appealed to an administrative board,
which ordered her reinstated.
Judge Southwick joined a majority opinion that upheld the board's
decision to reinstate the employee. The opinion stated that there was
sufficient evidence in the record to support the decision of the board.
I believe he should not have joined the court's opinion, but I don't
think his decision to concur in that opinion should disqualify him from
being a Federal judge.
After our meeting in person, I asked the judge to put his thoughts in
writing, and he did. I found the letter convincing.
Mr. President, I will quote some of this letter:
The court said that the use of the word ``cannot be
justified'' by any argument. It could have gone far beyond
that legalistic statement. Captured in this one terrible word
is a long, dark, sad chapter in our history. This racial slur
is unique in its impact and painful to hear for many,
including myself. I said at my hearing that this is the worst
of all racial slurs. Its use is despicable. All people of
good will should make their rejection of the word clear. The
opinion had an opportunity to express more fully and
accurately the complete disgust that should greet the use of
this word. Such a statement would certainly be consistent
with my own beliefs that this is the worst kind of insult. As
I testified, everyone took this issue extraordinarily
seriously. I regret that the failure to express in more depth
our repugnance of the use of this phrase has now led to an
impression that we did not approach this case with sufficient
gravity and understanding of the impact of this word.
The letter goes on to say:
I always tried to treat everyone who came before me as a
judge with respect. I gave a memorandum to each of my law
clerks that they were to use no disparaging words towards
anyone in a draft opinion, no matter what the appeal was
about. From the bench and in my opinions, I followed that
same rule. I believe that everyone whom I encounter, whether
as a judge or in some purely private capacity, is deserving
of my respect.
I took a broad view in looking for staff. I was one of the
original ten judges on the Court of Appeals, taking office in
January 1995. In my second year on the court, I became the
first white judge to hire an African-American law clerk on
that court. I could not have been more pleased with her work,
and she went on to be a partner in a major Mississippi law
firm. I was equally pleased with the two additional African-
American clerks I hired before I left the court.
Judge Southwick concludes by saying:
Until the last two months, my fairness and temperament had
not been subject to criticisms. The recent concern may have
arisen from the fact that only one piece of evidence was
being used, namely, the racial slur opinion. A much better
explanation of my own abhorrence of this slur clearly could
have been written. I have tried in this explanation to
express my disgust for the use of that word and to present
some of the evidence from my own life to prove my commitment
to furthering the civil rights of all.
In the second case, the child custody case, which is called S.B. v.
L.W., Judge Southwick's court affirmed a decision to deny custody of a
child to a mother who was in a same-sex relationship. The lower court
had based its opinion on several different factors, such as employment,
financial stability, and stability of the environment, and not just the
sexual orientation of the mother.
In fact, a major concern in the case was that the mother was planning
to move to a new city, and the mother had admitted that the move was
not in the daughter's best interest. She said she did not know where
her daughter would attend school, and also that she would be devoting a
lot of time to starting a new business after the move.
Judge Southwick joined the majority opinion, upholding a lower
court's decision that the best interests of the child would be better
served by being in the father's custody. He also joined a concurring
opinion written by another judge.
When asked about the case at his hearing, Judge Southwick said that
he had joined the concurring opinion because it followed State law at
the time, which was governed by Supreme Court precedent that has since
been overruled. Judge Southwick conceded at the hearing that under
current law the analysis of the case, and perhaps the result, would be
different.
Again, the question is whether his decision to join the opinion is
grounds for disqualifying him from a Federal judgeship. To me, simply
stated, it is not.
So I am voting in favor of Judge Southwick because I think, based on
the letter he wrote to me, on my discussions with him, and on his
record, he is not outside of the judicial mainstream.
That is the primary criterion I use when evaluating an appellate
nominee, and I expect future nominees of Democratic Presidents to be
treated in the same way.
I believe the concerns that have been raised about Judge Southwick
are outweighed by his record of service to our country, his long
experience as an appellate court judge, and the temperament I have come
to know in my discussions with him.
Mr. President, I ask unanimous consent that the mandatory quorum
required under rule XXII with respect to the Southwick nomination be
waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. Mr. President, I obviously rise in support of the cloture
motion and in support of the nomination of Judge Leslie Southwick to be
confirmed to the Fifth Circuit Court of Appeals.
I begin by thanking Senator Reid for allowing this nomination to be
called up and even considered. He doesn't have to do that as our
leader, but he should be commended by those of us who support Judge
Southwick for his willingness to allow the nomination to be debated and
considered.
Mr. President, I wish to express my appreciation to the very studied
and careful job that Senator Feinstein has done with regard to this
nominee. I know it has not been easy, but I also know that she has
taken time, she has been patient, she has done her homework. I am sure
she has endured criticism. She has shown tonight that she is truly one
of the outstanding lions or lionesses, I guess, is the correct word, of
the Senate. She has shown courage.
She and I have worked together. Sometimes we have lost when we have
worked together, and sometimes we have succeeded. But we have tried to
do the right thing for the Senate and for our country. I have nothing
but the utmost admiration and appreciation for the position she has
taken. I actually am hesitant to proceed after her comments because
they were so careful and so well thought out and presented.
I do think that I would like to put a few remarks into the Record
tonight,
[[Page S13252]]
and I will add additional items tomorrow. I thank Senator Feinstein so
much. What she did tonight with regard to this nominee and how she is
going to vote tomorrow is the kind of thing, I believe, that will
affect in a positive way the nominations of other men and women in the
future in the Senate. We have worked together on nominees from
California in the past, and I stood against a filibuster then, and I am
proud I did. I have voted for nominees, such as Justice Ginsburg,
because I thought it was right.
I also have been a party to and have observed conduct in the Senate
by my colleagues on this side of the aisle that I am sorry about, I
regret. But how do we ever stop the slide downhill by the Republicans
and then by the Democrats and then again by the Republicans? When can
we rise above that type of personal and partisan attack and consider
these nominations and legislation in a more respectful and responsible
way?
I believe Senator Feinstein has taken that first step that can lead
to other steps, and we will stop this slide I have observed occurring
more and more each year for 10 years. Now maybe this is the moment,
maybe this will be the catalyst that will lead to other steps on this
side of the aisle and on the other side of the aisle so that we will
treat these nominations and legislation in a proper way.
I thank the Senator for staying and allowing me to commend her. I
hope it doesn't get her into too much trouble, but I admire the Senator
very much.
I do want to recognize the remarks made by Senator Specter of
Pennsylvania and the thorough job he did in referring to particular
cases. I don't want to repeat the cases that have been mentioned here
tonight, or go over his whole resume again, but I wish to take a moment
to maybe highlight some of the parts of that resume of this very
distinguished nominee.
I also want to note the presence of the senior Senator from
Mississippi, my colleague Senator Cochran. He and I have been in the
Congress for 35 years. We were in the House together. He came to the
Senate, and 10 years later I came to the Senate. One of the things I
did when I came to the Senate, I sat down and talked to Senator Cochran
about how to consider nominees for the Federal judiciary, because he
was on the Judiciary Committee. He had some very good, helpful, and
simple advice. Basically, he said if they are from your State,
certainly if they are personally repugnant, you can vote against them.
But basically, he said, if they are qualified by education and by
experience and by temperament, you should be supportive. Kind of
simple, but it was a thoughtful suggestion to me that came from this
experienced member of the Judiciary Committee, and I have tried to do
that, and I will continue to do so.
I do believe very strongly that this nominee is obviously well
qualified. One of the things that was noted about his outstanding
academic record was that he graduated cum laude from Rice University, a
well-known and well-respected academic institution. He didn't just
graduate with honors, he graduated cum laude, right at the top. He
later graduated from the University of Texas School Of Law, where he
also had an outstanding record academically.
When he came to the State of Mississippi, he continued that record of
success. He worked with one of the most revered members of the Fifth
Circuit, Chief Judge Charles Clark, one of the most outstanding jurists
I have ever observed in my career of watching our Federal judiciary.
When he went to work for a law firm, he didn't go with just any law
firm, he went with one of the State's very best--Brunini, Grantham,
Grower, and Hewes, where he became a partner. At every step along his
career, he didn't do just well, he excelled in how he handled himself
in the positions he had, and he continued that when he went on the
court of appeals.
A lot has been made about the fact that he has served in the
Mississippi National Guard. He reached the rank of lieutenant colonel.
He didn't just serve as a reservist to meetings of the National Guard,
he was actively involved with the 155th Separate Armored Brigade. And,
of course, he went with the 155th Brigade Combat Team and was mobilized
in Operation Iraqi Freedom. So even there he took risks. He was
involved in a way at his age that wouldn't ordinarily have been
expected. This further shows that he is a unique individual in terms of
his education and his experience.
But more than anything else, with rare exception, I have never seen a
more qualified nominee to be an appellate court judge; not just a
Federal judge, but an appellate court judge. His experience has been in
the Mississippi appellate court system, where he presided or
participated over 7,000 cases. That point has already been made, but
that is an extraordinarily large number of cases for him to be involved
with over these several years that he was a member of the appellate
court in Mississippi.
In terms of the kind of man he is, let me read one part of one letter
from one of the most revered and respected former Governors of our
State of Mississippi, a Governor who has a very progressive record of
leadership and of civil rights issues, and who has continued until this
very day to work for racial reconciliation and heads an organization at
the University of Mississippi dedicated to that purpose. This is a
Democrat. This is what most people would acknowledge in Mississippi
would be one of your more moderate to liberal Democrats. Knowing him,
he probably doesn't like those labels, but he has a record of
involvement in those areas where this nominee has been challenged or
criticized. This is what William Winter, our former Governor, said:
I further know him to be a very intelligent, conscientious,
ethical and hard-working member of the legal profession. I
have a great deal of personal respect for him and based upon
my association with him I believe he will reflect fairness
and objectivity in his approach to all matters which may come
before him as a judge.
I don't know what higher recommendation you could have from our
State, from a member of the opposite party, and a former Governor of
our State. So he knows the background of this nominee.
Mr. President, I ask unanimous consent to have printed in the Record
the entirety of the letter of William F. Winter.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Watkins Ludlam Winter
& Stennis, P.A.,
Jackson, Mississippi, June 13, 2007.
Hon. Arlen Specter,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senator Specter: I join a number of my colleagues in
the Mississippi Bar in expressing support for the nomination
of the Honorable Leslie Southwick for a seat on the U.S.
Court of Appeals for the Fifth Court.
I personally know Judge Southwick as a highly regarded
attorney and jurist in Jackson, Mississippi. I further know
him to be a very intelligent, conscientious, ethical and
hard-working member of the legal profession.
While it is generally known in this community that he and I
do not share the same views on some public issues. I have a
great deal of personal respect for him and based on my
association with him I believe that he will reflect fairness
and objectivity in his approach to all matters which may come
before him as a Judge.
I, therefore, commend him to you as one whose personal
character and professional record make him worthy of your
favorable consideration for this important position.
Respectfully yours,
William F. Winter.
Mr. LOTT. Judge Southwick was awarded the Judicial Excellence Award
by the Mississippi State Bar Association, and he was rated not just
well qualified but unanimously well qualified by the American Bar
Association. This is supposed to be the gold standard. The previous
nominee for this position was not given that. He was given a ``not
qualified'' rating by the bar association. So they don't just
rubberstamp nominees, they look very closely at them.
If there is a question about his temperament, if there is a question
about his record on civil rights issues, or anything else, they would
have found it and they would have included it in their recommendations.
And, by the way, this is the same nominee who, 1 year ago, was
unanimously referred by the Judiciary Committee to be a Federal
district judge. Now, 1 year later, there are those who question the
same record they had a chance to review last year.
Of the opinions he actually authored, there is no criticism of the
more than
[[Page S13253]]
1,000 decisions where he actually wrote the opinion. I assure you, they
were scrubbed and reviewed very carefully. There are two decisions in
7,000 where he concurred but did not write the decision, where
questions have been raised.
I know we all make mistakes, and we choose to associate sometimes
with situations or people we regret later. I know he would do some of
his decisions differently now if he had them to do over again. But this
is a long distinguished record, with only a couple of phrases in two
decisions that, obviously, are troublesome.
Now, beyond those qualifications, he also has the temperament. He is
mild mannered, he is very judicious, he is moderate in his approach to
being a judge and in his life; not to say that he won't be conservative
in a lot of his rulings. I think he will. But I am talking about
demeanor and temperament. Clearly, he has what Senator Cochran and I
thought the Senate indicated they desired.
This is the third nominee for this vacancy. The other two didn't make
it. We heard what the Senate had to say regarding these past nominees
and we came up with a judge we thought met the criteria that was
expressed by a lot of our colleagues here in the Senate. But I also
want to emphasize this. I have stood on this floor and argued to my own
colleagues that we should not set the precedent of filibustering
qualified judicial nominees----
The PRESIDING OFFICER. The Senator's time has expired.
Mr. LOTT. Mr. President, I ask unanimous consent for 2 additional
minutes, if my colleague, Senator Cochran, would yield me those 2 to
wrap up.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Mr. President, I have argued we should not filibuster
Federal judges. One time when I sat in that seat as majority leader, my
colleagues actually voted to filibuster a judge and opposed cloture.
Senator Hatch and I took to the floor and said we are not going to do
this. This is wrong. If you want to vote against him, vote against him,
but we are not going to filibuster these judges. Those judges were
Judges Paez and Berzon in 2000. We had a second vote, reversed the
previous vote which opposed cloture, invoked cloture, and then voted on
those nominees. I voted against them both, but I thought they deserved
an up-or-down vote.
Here tonight and tomorrow, when we vote, at the very minimum we
should not filibuster this nomination. We should allow this judge to
have an up-or-down vote. One of the speakers tonight indicated he would
vote against him. Fine, if that is what your conscience dictates. But
first, we have to deal with this question of should we start down this
trail of filibustering qualified judges because we disagree with some
philosophical position. We shouldn't do that. If we do it here, we will
do it again later. If we do it in this administration, we will do it in
another administration. Give the man an up-or-down vote. I believe--I
am absolutely convinced--that he will be confirmed.
I will have a few more remarks probably in the morning, but let me
say to you, Mr. President, and to my colleagues in the Senate, I have
never before done this, but I can vouch on my honor to this institution
that I have served for many years now and in leadership positions, this
is a good and qualified nominee who will reflect credit on the
institution that confirms him and in the court in which he serves.
The judicial confirmation process has always shown strong deference
to the opinions of home State Senators. There is good reason for this.
Home State Senators are uniquely positioned to know the personalities,
qualifications, and reputations of the nominees from their state. The
fact that this traditional courtesy of the Senate is being ignored
should be cause for concern for every Senator in this Chamber.
I respected this traditional courtesy when I served as majority
leader. In the last few years of the Clinton administration, a
Republican Senate confirmed a string of highly controversial appeals
court nominees who nonetheless had the backing of their home State
Senators.
When the controversial nominations of Paez and Berzon where debated
in 2000, I filed cloture on both of their nominations. While many on my
side of the aisle opposed the nominations, I upheld my promise to bring
their nominations to an up-or-down vote.
We are in danger of establishing an ill-advised precedent that could
have longstanding negative ramifications on not just the legislative
branch but also upon the judicial branch. Should this body block a
clearly qualified nominee based on a ``perceived controversy''?
Every Senator in this body needs to understand what is at stake here.
This isn't a simple case of controversial nominee being taken down in a
partisan fight.
This is a mainstream nominee to a seat that has been declared a
judicial emergency, with the strong support of both home State
Senators, with a ``unanimously well qualified'' rating from the ABA--
the supposed gold standard for my colleagues on the other side of the
aisle--who was reported out of the Judiciary Committee unanimously for
a lower court nomination less than 12 months ago, and a military judge
who courageously served in Iraq.
This isn't just about Judge Lesile Southwick. This is about the
standard that is being set for the future. Every Senator in this
Chamber will have judicial nominees that come from their home State,
and they will expect those qualified nominees--with home State Senator
support--to be confirmed. Well, that is not the precedent that we are
establishing here. Next time, this could be your nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. Mr. President, under the order, I think there were 5
minutes, and 2 of the minutes I yielded to my colleague and
distinguished Senator, so it is my intention to proceed with 3 minutes.
The PRESIDING OFFICER. There is 9 minutes remaining on the Senator's
side.
Mr. COCHRAN. I will use the balance of that in the morning.
The purpose of my being here tonight was to be sure I was available
to hear the comments of all Senators who wanted to speak on this
confirmation. This has been a very frustrating experience for me
personally, because, as my colleague pointed out, we have confronted
difficulties in submitting names for the consideration of the Senate
for this particular position. Two he pointed out have been nominated by
the President and, in fact, rejected. Names were withdrawn because of
delays that made it clear those judicial nominees were unacceptable. So
we put our heads together, we talked about what the other options were,
and decided Leslie Southwick was the epitome of someone who had to be
acceptable to the Senate. Not only is he an experienced judge in an
appellate court position, but he is a person of great integrity, widely
respected, even though he has been a Republican and active in politics
in our State, supporting candidates that he thought were the best in
his party who were available to be nominated and elected. He is a
person who is widely respected by Democrats, as proven by William
Winter's very generous letter complimenting him and pointing out his
personal qualities. That should be instructive to the Senate in its
consideration of this nomination.
I don't know of any situation I have confronted since I have been in
the Senate that has been more frustrating than watching and listening
to the criticism of this nominee who has been totally unjustified,
totally unjustified on the record. Viewing his career as I have
observed it, it is not the same person I hear described by those I hear
criticizing and objecting to this nomination, reaching through 7,000
opinions trying to find something he had said or done or indicating a
view that was unacceptable in a Federal judge. And they come up with
two opinions that he didn't write, and they are fully explained by him,
and totally contradictory, in the way they have interpreted, to his
personality, his good judgment, and the way he has lived his life.
I think it is a lot more instructive if you could have been with me
yesterday in Natachez, MI, dedicating a new Federal court building, the
shock, I guess, that others might find, that the Presiding Officer at
that ceremony was United States District Court Judge
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Henry Wingate, an African American I had recommended 20 years ago for
the Federal bench, who is now the chief judge of the Southern District
in the United States District Court.
There are several other judges, all of whom were there. Edith Jones
of the Fifth Circuit, who is the chief judge now of the Fifth Circuit
Court of Appeals, was our principal speaker on this occasion. And I
noticed that the person who is a U.S. marshal for the Southern District
of Mississippi is Nehemiah Flowers, whom I had recommended many years
ago and has served in that job with distinction and reflected credit on
African Americans of our State, but also as an individual in his own
right who is the chief keeper of the peace and law enforcement official
in the Federal District Court, I was proud to be there on the podium
with him.
Leslie Southwick is totally well qualified and ought to be confirmed
by the Senate. I have spoken on the Senate floor a couple of times at
great length about it and put into the Record letters from people all
over our State commending him and vouching for him, talking about his
experiences as a judge and my familiarity with him as a person. He has
a record that would be the envy of anyone who would aspire to be
admired and respected as a judge or a lawyer or a citizen. I can't
believe that he is being challenged as harshly as he is by some in this
body, and I urge the Senate to confirm him as a United States Court of
Appeals judge tomorrow.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, how much time remains?
The PRESIDING OFFICER. Four minutes.
Mr. BROWNBACK. Mr. President, I want to speak in favor of Judge
Southwick and the nomination and would take up that 4 minutes.
A couple of quick points I want to make on this because the time is
short, the hour is late, and I appreciate the Presiding Officer
staying. I have met and I have gotten to know Judge Southwick. I have
worked with him. I have seen him now through two Senates, the last
Senate and this Senate. This is an honorable man. This is a good man. I
think this is a smear campaign that people are trying to do on him, on
a good man.
I think if he came up in different circumstances everybody would say:
Why, absolutely he is the right person for it.
Part of the reason I say that is you look at the last Congress when
he came up in front of the Senate Judiciary Committee. Judge Southwick
came up in the last Congress, and he was unanimously approved by the
Judiciary Committee, seen as a consensus nominee who should move
forward. He has been through these parts before. Why is it he was
unanimous last time around and now he is a controversial candidate? Why
is it you are looking at 7,000 opinions and somehow now we found
something in a couple of opinions but didn't find those last year when
people were fly-specking it?
I think this is kind of a sign of the times and where we are and the
President's time period and the President's approval ratings. He is in
his last 2 years and people are looking and saying we don't want to get
these many circuit court judges approved. But if you look at the
record, this is not fair to this judge.
Look at the diversity issue. I just want to put a chart up on the
diversity of the Fifth Circuit because that issue has been raised, the
number of appointees to the Fifth Circuit. Under President Clinton and
Bush: Women appointed under President Clinton, zero; President Bush
appointed two; African Americans, one under Clinton, none under Bush;
Hispanics, one under Clinton, one under Bush, and actually there was a
third woman appointed under Bush. I don't think that stands the review
and test of us being honorable and honest with what the situation is.
This is a judicial emergency situation. Senator Leahy has previously
stated if a vacancy is deemed to be a judicial emergency, it should be
addressed quickly. This is a judicial emergency, as determined by the
nonpartisan Administrative Office of the Courts. They have declared the
seat to which Judge Southwick has been nominated a judicial emergency.
Senator Leahy, for whom I have a great deal of respect and worked
with on a number of additional issues other than this, has also said it
is important whether the two home State Senators support the nominee.
You have just heard from the two home State Senators who strongly
support this nominee.
I think the criteria that have been previously set to fill a circuit
court position have been met, in many cases even exceeded. Yet we have
a controversy over a person who was seen, one Senate ago, one Congress
ago, as a consensus candidate. This seems to be much more reflective of
the time rather than the person, and I don't think that is meritorious
of this body, to decide something on, OK, it is in this session of
Congress rather than the prior session of Congress.
Here is an honorable, good man. If you have qualms with one of the
nominees, fine. But let's make it a real set of qualms and let's not
make it something that we invent this session, during this Congress,
and try to take it out on somebody who is a good candidate.
Here is a person who served honorably in the military, even asked
that his age be waived so he could join the Army Reserves at age 42. In
2002, at the age of 53, he volunteered to transfer to a line combat
unit that was widely anticipated to deploy to Iraq.
This is an honorable man. I urge my colleagues to actually look past
the way he is being painted and look to the reality of the facts and to
the longevity of his service and what he seeks to do and to vote and to
support this nominee.
I yield the floor.
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