[Congressional Record (Bound Edition), Volume 153 (2007), Part 15]
[Senate]
[Pages 21271-21273]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     NOMINATION OF LESLIE SOUTHWICK

  Mr. HATCH. Madam President, I rise in strong support of Judge Leslie 
Southwick's nomination to the United States Court of Appeals for the 
Fifth Circuit.
  The evaluations, hearings, and investigations are complete.
  The American Bar Association's highest rating is in.
  It is time for this body, the United States Senate, to decide whether 
to consent to this judicial nomination by voting up or down. That is 
our role and we should assert it rather than avoid it.
  Vote yes or vote no, but it is time for this body to do its duty and 
vote on the Southwick nomination.
  This Senator will proudly vote to confirm this excellent nominee.
  Before looking specifically at the Southwick nomination, I must 
respond to some recent remarks made by my Democratic colleagues 
concerning the confirmation process.
  Three of their claims require a response.
  First, Democrats have said that the three appeals court nominees 
confirmed so far this year are ``three more than were confirmed in this 
similar year in the last Clinton term.''
  That is a factual claim and it is either true or false.
  An evaluation of this claim is simple:
  We are in the third year of President Bush's second term and the 
Senate is controlled by the other party.
  The third year of President Clinton's second term was 1999, when the 
Senate also was controlled by the other party.
  Democrats, therefore, are claiming that the Senate confirmed no 
appeals court nominees in 1999.
  That allegation is patently false.
  In fact, and this is obviously a matter of public record, the Senate 
confirmed seven appeals court nominees in 1999, more than twice as many 
as the Senate has confirmed so far this year.
  Now, to give my Democratic colleagues the benefit of the doubt, 
perhaps they intended to refer to a different year during the last 
Clinton term.
  If so, the evaluation is the same with the same conclusion that their 
claim is patently false.
  The Senate confirmed seven appeals court nominees in 1997, 13 in 
1998, seven in 1999, and eight in 2000, a presidential election year.
  That is an average of nine per year and seventeen per Congress.
  It was my Democratic colleagues who used appeals court confirmations 
in President Clinton's second term as a benchmark for appeals court 
confirmations in President Bush's second term.
  By my Democratic colleagues' own standard, they will have to pick up 
the appeals court confirmation pace to match what Republicans did 
during President Clinton's second term.
  The second thing Democrats have claimed is that the judicial vacancy 
rate is at an all-time low.
  Once again, that claim is false.
  The judicial vacancy rate has been increasing each year since before 
President Bush's re-election.
  Average vacancies this year are 35 percent higher than in 2004, and 
average district court vacancies are 62 percent higher.
  I do not know where my colleagues get their information, but the 
judicial

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vacancy rate is on the way up, not at an all-time low.
  The third Democratic claim is that the Republican-controlled 
Judiciary Committee did not give hearings to 70 of President Clinton's 
judicial nominees. This, they say, was a sign of great disrespect.
  This is the judicial confirmation equivalent of an urban legend but, 
like other urban legends, constant repetition does not make it any more 
true.
  We may be entitled to our own opinions, but we are not entitled to 
our own set of facts.
  Not only does this claim, right off the bat, overstate the total by 
more than 20 percent but, more importantly, it ignores the fact that 
some judicial nominees do not receive hearings for a variety of 
perfectly legitimate and obvious reasons.
  My Democratic colleagues, of course, know this but also know that 
most Americans will not know the difference and many in the media will 
not bother to sort it out.
  President Clinton, for example, withdrew a dozen of his own nominees 
for various reasons, some involving significant and even embarrassing 
controversy. Was it disrespectful not to hold a hearing on nominees the 
President had withdrawn?
  President Clinton submitted other nominees too late in a 
Congressional session to permit proper evaluation. Was it a sign of 
great disrespect not to give a hearing to a nominee not yet ready for a 
hearing?
  Other nominees did not receive hearings because they were opposed by 
their home-State Senators, a tradition of Senatorial courtesy dating 
well back into the last century. Are my Democratic colleagues arguing 
that respecting the wishes of home-State Senators, including some of 
them, was being disrespectful to the nominees?
  There are even more reasons, but eliminating these three alone--
Presidential withdrawals, late nominations, and home-State Senator 
opposition--raises the Democratic margin of error to more than 100 
percent.
  The Southwick nomination has none of the problems I just mentioned 
that prevented confirmation of some Clinton judicial nominees.
  President Bush has obviously not withdrawn the nomination. He 
submitted this nomination on January 9, 2007, when the current 110th 
Congress convened, so there has been more than enough time for 
evaluation and confirmation.
  In fact, last year the Judiciary Committee thoroughly vetted Judge 
Southwick when he was initially nominated to the U.S. District Court.
  We looked at the same man with the same character, the same 
qualifications, and the same record. And we sent the nomination to the 
full Senate without any opposition, including from any of my Democratic 
colleagues who today are suddenly raising such a ruckus.
  To be fair, in the name of full disclosure, I must candidly admit 
that two important things have changed since last fall, when the 
Judiciary Committee unanimously approved Judge Southwick's nomination.
  First, Judge Southwick has been nominated to the appeals court rather 
than to the district court.
  Second, the American Bar Association has rated Judge Southwick higher 
for his appointment to the appeals court than they did for his 
appointment to the district court.
  It makes no sense to me, but I suppose someone somewhere might think 
that a higher rating justifies more opposition.
  The higher rating means Judge Southwick gets even higher marks from 
the ABA for his compassion, open-mindedness, freedom from bias, and 
commitment to equal justice.
  If someone can explain how that makes him less qualified for the 
Federal bench, I would like to hear it.
  Unlike Clinton nominees who did not receive hearings, Judge Southwick 
has the strong support of both of his home-State Senators.
  The Senators from Mississippi, Senators Cochran and Lott, are senior 
and highly respected members of this body. Their support ought to mean 
something.
  I have no doubt that if these two fine Senators objected to Judge 
Southwick receiving a hearing or an up or down vote, the Democrats who 
run this body would give them the respect they deserve and there would 
be no vote.
  It seems, however, that today this traditional courtesy to esteemed 
home-State Senators is on its way to becoming a one-way street.
  Both Mississippi Senators have been working with President Bush to 
fill this same seat for more than 5 years, and I think they deserve our 
respect and support just like we would seek theirs if the situation 
were reversed.
  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.
  I supported them and today I urge my colleagues to do the same for 
our colleagues from Mississippi and for Judge Southwick.
  When I came before this body a month ago, I explained why the tactics 
being used against Judge Southwick and other judicial nominees are 
illegitimate.
  It is illegitimate to focus only on a few of the thousands of 
decisions in which Judge Southwick participated while on the 
Mississippi Court of Appeals.
  It is illegitimate to ignore the facts and the law of those few 
cases.
  It is illegitimate to ignore the standard of review that Judge 
Southwick had to follow as an appeals court judge.
  It is illegitimate to look only at the political interests served by 
the results of those few cases.
  It is illegitimate to create a distorted, twisted caricature of this 
nominee, a caricature that is simply unrecognizable by those who know 
him best and have worked with him most.
  These are some of the illegitimate tactics being used against this 
fine nominee. I have a hard time believing that any of my colleagues 
would endorse these tactics or, worse yet, be persuaded by them.
  As I said, the entire case against this highly qualified nominee 
rests on just two of the 7,000 cases in which he participated, each 
involving an opinion which he did not write.
  If saying that is not enough to reject this empty case against Judge 
Southwick's confirmation, I fear for the confirmation process and this 
body's role in judicial appointments.
  But let me take a minute and look at these two lone decisions that 
supposedly justify this tirade, this assault, this hatchet job against 
Judge Southwick.
  The first is titled Richmond v. Mississippi Department of Human 
Resources.
  Last week, one of my Democratic colleagues said that this one lone 
decision creates a perception that Judge Southwick will be not be fair 
in civil rights cases as well as in cases about what he called the 
rights of ordinary people.
  I agree with the distinguished Judiciary Committee Ranking Minority 
Member, Senator Specter, who has said that this body should evaluate 
judicial nominees based on facts, not perceptions.
  Perceptions, after all, can be created with one press release, sound 
bite, letter, interview, or floor speech. If all it takes to justify 
opposition is such a deliberately invented perception, a politically 
motivated innuendo is all it would takes to defeat a nominee and 
destroy a good man's reputation.
  That is wrong, and is another sign that this judicial confirmation 
process is steadily degrading.
  In the Richmond case, a State employee used a racial slur one time. 
The person to whom it was directed did not hear it and later accepted 
an offered apology. The State review board concluded that these 
circumstances did not require terminating the employee.
  To hear the critics describe it, the issue on review before the 
Mississippi Court of Appeals was whether racial slurs are good or bad, 
whether racial slurs ought to be tolerated in the workplace.
  To hear the critics describe it, the appeals court looked at this 
case from scratch, had all options open, and could have done anything 
it wanted.

[[Page 21273]]

  The critics know that is not true, but they also know that most 
people will not know the difference.
  Apparently, the political or partisan goal of attacking Judge 
Southwick justifies misleading people about what judges do in general, 
and about this case in particular.
  The Mississippi Court of Appeals, on which Judge Southwick sat, was 
limited to reviewing this decision under a specific, narrow standard 
called the arbitrary and capricious standard.
  The appeals court was required to affirm the review board's decision 
if there was any evidence to support it. That is a very deferential 
standard, and a judge's personal opinion is not enough to overcome it.
  On appeal, the Mississippi Supreme Court agreed with Judge 
Southwick's court that the facts of this case did not require that the 
employee be terminated.
  Let me make this very clear.
  Judge Southwick's critics are not addressing what the court actually 
did in this case. They are attacking Judge Southwick because his court 
did not reach a decision it had no authority to reach. No matter what 
your personal feelings about the issue in the case, that is the wrong 
standard.
  It is wrong to suggest that judges are not fair to parties simply 
because they rule against them.
  It is wrong to suggest that judges should prefer politically correct 
results over legally correct results.
  Judges do not exist to opine on social problems or address social 
trends, they exist to decide legal cases.
  Judges do not exist to serve political interests or pursue policy 
agendas, they exist to settle legal disputes.
  Judge Southwick apparently understands this much better than his 
critics. Properly understanding that judges must follow the law rather 
than their personal opinions is precisely why Judge Southwick should be 
confirmed.
  Some have said that this decision shows Judge Southwick has hostile 
views on race.
  It does not show his views on that issue one way or another.
  But if any question remained about Judge Southwick's personal views, 
in his confirmation hearing before the Judiciary Committee--a more 
appropriate setting in which to do it--Judge Southwick made his views 
perfectly clear. He said that this particular slur is always offensive 
and inherently derogatory.
  If some of my colleagues believe judges should ignore the law and 
decide cases based on personal views, they should say so.
  If some of my colleagues believe judges should decide which side is 
going to win before a case even starts, they should say so.
  If some of my colleagues really believe that litigants will get a 
fairer shake before judges who decide cases by personal opinions rather 
than the law, they should explain such a wrong-headed idea.
  America's founders did not believe that, I do not believe that, and I 
think most Americans do not believe that.
  The other case with which Judge Southwick's critics would indict him 
is titled S.B. v. L.W.
  In this custody case, all of the relevant factors such as employment, 
income, home ownership, and community roots, weighted in favor of the 
father.
  State statutes and State judicial precedents at the time also favored 
the heterosexual father over the bisexual mother.
  The court's job was to review these factors, and the court upheld the 
decision to give custody to the father. That is what the law required, 
so that is what the court did.
  So what is it about this decision that Judge Southwick's critics 
offer as the basis to oppose him? That an opinion he joined but did not 
write used the phrase ``homosexual lifestyle.''
  I can accept that some people see this as a negative phrase.
  But others might see it simply as a factual phrase.
  The Mississippi Supreme Court used this phrase in the line of cases 
that Judge Southwick's court had to follow in its decision.
  The phrase has been used in hundreds of court decisions, on both the 
State and federal level, all across this country. This includes the 
Supreme Court's decision in Lawrence v. Texas, which Judge Southwick's 
critics no doubt would applaud.
  It is hardly a stretch to see that this phrase is relevant in a 
custody case where applicable law makes lifestyle patterns and home 
life decisions important.
  This, I say to my colleagues, is the case against Judge Southwick: 
two decisions, two opinions he did not write, with results some people 
do not like but which followed applicable law and stuck to the job the 
appeals court had to do.
  That so-called case against Judge Southwick is less than 
unpersuasive, it is no case at all.
  Before I close, I want to repeat a point I made the last time I 
addressed this body about this excellent nominee.
  In their letter opposing Judge Southwick, the Congressional Black 
Caucus said that we ``should be impressed by the frequency with which 
Southwick's opinions and concurrences have been overruled.''
  That is the standard the Congressional Black Caucus recommends that 
we apply to this nomination.
  Judge Southwick authored 927 opinions and concurrences while on the 
Mississippi Court of Appeals.
  Only 21 of those 927 opinions and concurrences, or just 2.3 percent, 
have been either reversed or even criticized by the Mississippi Supreme 
Court in 12 years.
  As the Congressional Black Caucus said I should be, I am indeed 
impressed by the frequency with which Judge Southwick's opinions and 
concurrences have been overruled. A reversal rate so low is a sign that 
he is a balanced jurist whose work is highly respected and holds up 
under scrutiny.
  This is yet another reason why this excellent nominee should be 
confirmed.
  Mr. President, the majority of Americans who disapprove of our job 
performance has been growing all year, from 56 percent in March and 
April to nearly 65 percent today.
  A record low of 14 percent of Americans have confidence in Congress.
  Perhaps, just perhaps, illegitimate tactics and unfair treatment of 
good people and outstanding nominees such as Judge Southwick contribute 
to this dismal picture.
  I hope that changes, not only for the nominees but also for the 
vitality and integrity of this institution.
  The Southwick nomination is ready for the Senate to decide whether to 
give its consent by voting up or down.
  The background checks are done.
  The ABA's highest rating is in.
  The questionnaire is complete.
  The hearings have been conducted.
  The distinguished home-State Senators have given this nominee their 
strongest endorsement.
  None of the factors that stopped, held up, or slowed down past 
nominees exist in this case.
  There are no reasons or excuses for further delay.
  The Judiciary Committee and the full Senate should promptly approve 
this excellent nominee.
  I yield the floor.

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