[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.

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