[Congressional Record (Bound Edition), Volume 153 (2007), Part 15] [Senate] [Pages 20984-20985] [From the U.S. Government Publishing Office, www.gpo.gov]NOMINATION OF LESLIE SOUTHWICK Mr. DURBIN. Mr. President, I made remarks yesterday on the Senate floor about the nomination of Judge Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit. Some of my Republican colleagues then came to the floor and made their own remarks about Judge Southwick. I would like to respond to some of their points and set the record straight. First, I take issue with the way they described the procedural history of a case involving a White employee in Mississippi who was fired for calling an African-American colleague the ``N'' word. In this sharply divided 5- to 4- case, Judge Southwick joined the majority, and he voted to reinstate the White employee with full backpay and no punishment whatsoever. Senator Cornyn came to the Senate floor and said that the Southwick majority ``was ultimately upheld by the Mississippi Supreme Court in compliance with appropriate legal standards.'' That statement does not accurately describe what actually happened. Yes, the Mississippi Supreme Court said that termination was too Draconian a punishment, but it also said that the decision to reinstate the White employee with full backpay and with no punishment whatsoever--the decision that Judge Southwick signed onto--was erroneous. Let me read the last three words of the Mississippi Supreme Court's opinion in this case so the record is clear. The three words are: ``reversed and remanded.'' The Mississippi Supreme Court concluded: ``[W]e remand this matter back to the Employee Appeals Board for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.'' This conclusion is the same one reached by Judge Diaz, who dissented from Judge Southwick and the five-person majority at the appeals court level. Judge Diaz wrote: ``I write separately to object to the EAB's failure to impose sanctions upon Bonnie Richmond for using a racial slur in describing another DHS employee. . . . This is not to say that the EAB should have followed the DHS's recommendations to terminate Richmond, but there is a strong presumption that some penalty should have been imposed.'' That conclusion, which the Mississippi Supreme Court embraced, undermines Senator Cornyn's assertion that the Southwick majority ``was ultimately upheld by the Mississippi Supreme Court.'' The bottom line is that Judge Southwick voted to reinstate the White employee with complete impunity--with no punishment whatsoever. The Mississippi Supreme Court said: No, punishment should be considered. Let me address another aspect of this case that was mentioned by a Republican colleague. In trying to minimize the significance of the case and defend Judge Southwick's position, this Senator stated that the White employee's use of the ``N'' word was ``a one-time comment.'' I would dispute that characterization. It is true that the Southwick majority referred to ``this one use of a racial epithet.'' However, according to a letter from the State agency reprinted in the State supreme court opinion, there were at least two instances in which the White employee used the ``N'' word: once in front of the victim and once at a meeting where the victim was not present. In addition, as set forth in the State supreme court opinion, the White employee testified that she didn't think her Black colleague would be offended by use of the ``N'' word because: ``You know, I thought that we had used that terminology previously and Varrie [the black employee] didn't seem to have a problem with it, nor anyone else.'' So it seems that the use of the ``N'' word was not an isolated comment in this workplace. Senator Cornyn tried to defend Judge Southwick's vote in this case, and he said the following: ``A judge has no choice but to vote. He voted for the result, for the outcome of the case, but I think it's unfair to attribute the writing of the opinion to Judge Southwick.'' I disagree. As I noted yesterday, Judge Southwick had other options in this case. He could have written a concurrence. He could have written a dissent. He could have joined one of two different dissents that were written by other members of his court in this case. He did none of these things. The ``N'' word case is not the only case in which Judge Southwick has demonstrated racial insensitivity. A coalition of four leading civil rights groups--the NAACP, the NAACP Legal Defense and Educational Fund, the National Urban League, and the Rainbow/PUSH Coalition--wrote a letter to the Senate Judiciary Committee and stated: We are also troubled by Judge Southwick's record in cases involving race discrimination in jury selection. . . . Generally, Southwick has upheld the rejection of claims by defendants that the prosecution was motivated by race discrimination in striking African Americans from juries. However, Southwick appears to have less difficulty finding race discrimination when the prosecution makes ``reverse Batson'' claims that defendants have struck white jurors for racial reasons. The letter discusses several examples of this trend in Judge Southwick's track record. Let me also say a little more about the case in which Judge Southwick voted to take away an 8-year-old girl from her lesbian mother. What is troubling about this case is not only the result that Judge Southwick reached but also the fact that he was the only judge in the majority to sign onto a troubling concurring opinion that said sexual orientation is a choice and that losing a child in a custody battle is a consequence of that choice. Judge Southwick is opposed by the Human Rights Campaign--a prominent gay rights organization--which has said the following about this nominee: 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 [[Page 20985]] ``consequence'' of being gay, Judge Southwick cannot be given the responsibility to protect the basic rights of gay and lesbian Americans. As I said yesterday, this nomination isn't just about the ``N'' word case and the gay custody case. Judge Southwick has a long track record of favoring employers and corporations over employees and consumers. There are two studies that bear this out: One was conducted by the Business and Industrial Political Education Committee, as reported by the Biloxi, Mississippi Sun Herald on March 24, 2004. The other study was undertaken by an organization called the Alliance for Justice and is available on their website. I would make one final point. One of my Republican colleagues criticized me for opposing Judge Southwick for a seat on the Fifth Circuit while having voted for him last year to be a Federal district court judge. It is true that Judge Southwick was voted out of the Senate Judiciary Committee last year by voice vote as part of a package of 10 judicial nominees. But we did not know about the ``N'' word case at that time. It is an unpublished decision and was not brought to our attention until this year. In any event, the reality is that our circuit courts are more crucial to the protection of our rights and liberties than our district courts. Because the U.S. Supreme Court takes so few cases, the circuit courts of appeal are the final word in 99 percent of Federal cases that are appealed. That is why most of the judicial nomination battles of the past few years have involved circuit court nominees, not district court nominees. I know the Senators from Mississippi, and others, feel strongly that Judge Southwick should be confirmed. I respect their beliefs, and I have listened to their arguments. But I hope they will recognize the controversy surrounding this nomination and encourage the White House to put forward a different nominee--someone who can gain bipartisan support in the Senate Judiciary Committee. ____________________