[Congressional Record (Bound Edition), Volume 153 (2007), Part 20]
[Senate]
[Pages 27931-27944]
[From the U.S. 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.

[[Page 27932]]

  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be rescinded.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.
  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

[[Page 27933]]

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 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.''

[[Page 27934]]

       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).
       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

[[Page 27935]]

     ``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.
       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 percent) of any circuit and Mississippi has the highest 
     African-American population (36 percent) 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

[[Page 27936]]

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.
  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

[[Page 27937]]

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 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

[[Page 27938]]

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.
       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

[[Page 27939]]

     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.
  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

[[Page 27940]]

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 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 2 opinions: 1 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 4 other judges on his court, and 1 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.

[[Page 27941]]

     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, 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.

[[Page 27942]]

  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 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

[[Page 27943]]

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 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.

[[Page 27944]]

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.

                          ____________________