[Congressional Record (Bound Edition), Volume 153 (2007), Part 20]
[Senate]
[Pages 28067-28095]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF LESLIE SOUTHWICK TO BE UNITED STATES CIRCUIT JUDGE FOR 
                           THE FIFTH CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now proceed to executive session to resume consideration of 
the following nomination which the clerk will report.
  The legislative clerk read the nomination of Leslie Southwick, of 
Mississippi, to be United States Circuit Judge for the Fifth Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 11 a.m. shall be equally divided between the 2 leaders or their 
designee, with the time from 10:40 to 11 a.m. divided and controlled 
between the 2 leaders and with the majority leader controlling the 
final 10 minutes.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. How much time remains on each side?
  The ACTING PRESIDENT pro tempore. Fifty-seven and a half minutes on 
the majority side and 58 minutes on the minority side.
  Mr. SPECTER. How much again on the Republican side?
  The ACTING PRESIDENT pro tempore. Fifty-eight minutes.
  Mr. SPECTER. Mr. President, I spoke extensively last night after 
Senator Leahy, the chairman, spoke about the nomination. I will make a 
few comments now, and I will invite my colleagues to come to the floor 
on the Republican side. For those who are interested in time, we have 
only a limited amount, but we will apportion it as best we can, 
obviously equitably. It is my hope that we will move through the 
cloture vote to cut off debate and then proceed to confirm Judge Leslie 
Southwick.
  As I said yesterday--and, again, I spoke at some length--Judge 
Southwick comes to this nomination with an outstanding academic, 
professional, and judicial record. On the Court of Appeals in the State 
of Mississippi and the intermediate appellate court, Judge Southwick 
has distinguished himself by participating in some 6,000 cases and 
writing some 950 opinions. His critics have singled out only 2 cases 
against that extraordinary record. I commented yesterday at length 
about the fact that in neither of the cases in which he has been 
criticized did he write the opinion, but only concurred, and there were 
good reasons for the positions he took.
  An extraordinary thing about Judge Southwick is that he got a waiver 
to join the Army Reserve at the age of 42 and then at the age of 53 
volunteered to go to Iraq into harm's way to serve on the Judge 
Advocate General's staff, receiving the commendation of the major 
general which I put into the Record yesterday.
  His record shows that he has been very concerned about plaintiffs in 
personal injury cases, about defendants in

[[Page 28068]]

criminal cases, and has looked out for the so-called little guy. As I 
enumerated yesterday, a number of very prominent members of the 
African-American community from Mississippi have come forward in his 
support--one young lady who was his law clerk and others who knew him. 
It is my view that on the merits, there is no question that Judge 
Southwick should be confirmed.
  There has been some concern about the seat he is filling, whether 
there should be greater diversity on the seat. That really is a matter 
in the first instance for the President and then in the second instance 
for the Senate to consider the merits of the individual. It is the 
American way to consider Judge Southwick on his merits as to what he 
has done and as to what he stands for.
  We have seen this body very badly divided in the past couple of 
decades along partisan lines. In the final 2 years of the 
administration of President Reagan when Democrats had control of the 
Senate and the Judiciary Committee, President Reagan's nominees were 
stonewalled to a substantial extent. The same thing happened during the 
last 2 years of the administration of President George H.W. Bush. Then, 
Republicans acted in kind during the Clinton administration and refused 
in many cases to have hearings or to call President Clinton's nominees 
up for confirmation. I think that was the incorrect approach and said 
so, in fact, on a number of President Clinton's nominations.
  This body had a very tough time 2 years ago when we were considering 
the so-called nuclear constitutional option which would have taken away 
the filibuster opportunity to require 60 votes, and we succeeded in a 
compromise with the so-called Gang of 14. The Judiciary Committee has 
functioned more smoothly during the course of the past 3 years with 
Senator Leahy now the chairman and during the course of the 109th 
Congress in 2005 to 2006 when I chaired the committee.
  So it is my hope that comity will be maintained, that Judge Southwick 
will be considered as an individual as to whether he is qualified, 
without any collateral considerations as to the history of nominees to 
the Fifth Circuit. I think if that is done, Judge Southwick will be 
confirmed. It would be most unfortunate, in my judgment, if we were to 
go back to the days of excessive partisanship.
  It is an open question as to who the President will be following the 
2008 elections, and it would be my hope that however the Presidential 
election works out and whoever may control the Senate, that we will 
consider the nominees on their individual merits. To repeat, I think 
that will lead to the confirmation of Judge Southwick.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Schumer). The Senator from New Jersey is 
recognized for 10 minutes.
  Mr. MENENDEZ. Mr. President, I rise today in opposition to the 
nomination of Judge Southwick. With a long and consistent history of 
insensitivity toward discrimination and of siding with the powerful 
against the powerless, Mr. Southwick is the wrong person to take a seat 
on the Fifth Circuit Court of Appeals, and he is the wrong person to 
sit on the Federal bench in the State of Mississippi.
  Before I explain why I oppose this nominee, let me say that my 
concerns are based entirely on Judge Southwick's judicial record. They 
have absolutely nothing to do with Judge Southwick as a person--whether 
he is a nice man, a good employer, or a devoted family man. That is not 
what this confirmation process is all about. This confirmation process 
is about the kind of judge Leslie Southwick was on the Mississippi 
State Court of Appeals and what kind of judge he will be if he is 
confirmed to the Fifth Circuit.
  On the basis of Judge Southwick's record on the State court, I have a 
fairly clear picture of the kind of judge he will be if given a 
lifetime appointment. He will be the type of judge who consistently 
rules in favor of big business and corporate interests at the expense 
of workers' rights and consumer rights. I know this because in 160 out 
of 180 written decisions, he found a way to achieve that very outcome.
  What I do know is that he interprets the law in a way that is not 
blind to color, blind to race, or blind to sexual orientation, but, in 
fact, focuses on these factors and sides against them. In fact, his 
record reveals a long history of discriminating against individuals 
based on race and sexual orientation, a long history of siding with the 
powerful over and to the detriment of the powerless.
  Finally, what I do know is that when given the opportunity, he stands 
by those opinions. When asked by my colleagues on the Judiciary 
Committee, under oath, Judge Southwick was unable to think of a single 
instance--not even one example--of standing up for the powerless, the 
poor, minorities, or the dispossessed, not when he was asked during the 
hearing and not when he was asked for a second time in written 
followup. This is not the kind of judge we need on the Federal bench.
  Remember the circuit this judge was nominated to--the Fifth Circuit. 
It is the circuit that covers Mississippi, Texas, and Louisiana, the 
circuit that has the largest percentage of minority residents of any 
Federal circuit in the United States--44 percent. Let's not forget that 
he is nominated to take one of the seats within that circuit reserved 
for a judge from Mississippi--the State with the highest percentage of 
African Americans in the country.
  President Bush made a commitment to the residents of the Fifth 
Circuit, the people of Mississippi, and the people of this country that 
he would appoint more African Americans to this circuit. Not only has 
he gone back on this commitment, he has nominated someone whom the 
Congressional Black Caucus vehemently opposes on the grounds that he 
would not provide equal justice in a circuit where racial 
discrimination has always been the most pronounced. He has nominated 
someone who the NAACP, the NAACP Legal Defense Fund, the National Urban 
League, and the Rainbow/PUSH Coalition have all said would fail to 
protect the civil rights of the millions of minority residents living 
within the Fifth Circuit. Judge Southwick is an unacceptable nominee to 
any position on the Federal bench, but he is particularly ill-suited 
for the Fifth Circuit.
  Mr. President, let me give you one example of how Judge Southwick's 
insensitivity toward racial discrimination affects how he decides 
cases. In the case of Richmond v. Mississippi Department of Human 
Services, Judge Southwick had to decide whether it was racial 
discrimination for a White employer to refer to an African-American as 
``a good ole'' N word. Reversing a trial court's finding of 
discrimination, Judge Southwick joined an opinion stating that the N 
word was only ``somewhat derogatory'' and compared it to calling 
someone a ``teacher's pet.'' A teacher's pet?
  Judge Southwick was the deciding vote in the 5-4 decision. He had 
strong opposition from four dissenting judges who wrote:

       The [``N'' word] is, and has always been, offensive. Search 
     high and low, you will not find any non-offensive definition 
     for this term. There are some words, which by their nature 
     and definition are so inherently offensive, that their use 
     establishes the right to offend.

  It is incomprehensible to me that anyone could disagree with that 
statement. It is even more incomprehensible that the President of the 
United States could nominate an individual who does not believe the law 
sees such a term as offensive to the Federal appellate bench.
  The ``N'' word is one of the most hateful, most denigrating words in 
the English language. It has no place in our society and certainly 
should never be tacitly permitted in the workplace.
  The fact that Judge Southwick joined the majority opinion--which I 
should add was reversed by the State supreme court--is not an anomaly. 
Judge Southwick also has a troubling record in cases reviewing racial 
bias in the selection of jurors. Of the 59 instances that an African-
American defendant challenged their conviction on the grounds that the 
prosecution systematically struck African-American jurors, Mr. 
Southwick refused the challenge 54 times. That is an over 91 percent 
refusal rating.

[[Page 28069]]

  When the color of the juror's skin was different, when African-
American defendants challenged their convictions on the grounds that 
their defense attorneys were prevented from striking Caucasian jurors, 
Mr. Southwick refused their challenge and allowed the Caucasian juror 
to remain in the jury 100 percent of the time. So if a defendant 
claimed an African-American was unjustly kept off the jury, Judge 
Southwick denied his claim. If a defendant claimed a Caucasian was 
unjustly kept on the jury, Judge Southwick denied his claim. Thus, it 
seems like Judge Southwick favors keeping Caucasians on juries and 
keeping African-Americans off--even in a State like Mississippi.
  One of Judge Southwick's own colleagues criticized this apparent 
policy because it established a low burden for the state to keep 
Caucasian jurors on a jury and a high burden for defendants to keep 
African-Americans on a jury. Any double standard of justice, especially 
one that gives the benefit of the doubt to the Government at the 
detriment of individual rights, is antithetical to our justice system 
and its presumption of innocence. It is absolutely unacceptable on a 
Federal appellate court.
  Another area of concern I have involves Judge Southwick's rulings in 
cases involving discrimination on the basis of sexual orientation. In 
the case S.B. v. L.W., Judge Southwick joined an opinion that took an 
8-year-old child away from her birth mother largely because of the 
mother's sexual orientation. The fact that Judge Southwick joined this 
overtly discriminatory opinion is extremely troubling. However, the 
concurrence he himself authored is even more so.
  His concurring opinion stated that homosexuality was a ``choice'' 
that comes with consequences. Despite the fact that the American 
Psychological Association has found that sexual orientation is not a 
choice, Judge Southwick decided to give his personal opinion, his 
personal belief, that is was a choice, the weight of the law. Judges 
must always remember the precedential value of their words and their 
opinions. That a judge would base a legal judgment on personal opinion 
is disconcerting. That a judge would base a legal judgment on such 
misguided personal views regarding sexual orientation is absolutely 
intolerable.
  Before I conclude, I would like to discuss one other problem I have 
with Judge Southwick's nomination. That is the distinct trend in Judge 
Southwick's decisions of deciding in favor of big business and against 
the little guy. In fact, Judge Southwick ruled against injured workers 
and consumers 89 percent of the time when there was a divided court; 89 
percent of the time Judge Southwick put the interests of corporations 
ahead of average Americans; 89 percent of the time injured workers and 
injured consumers found they were entitled to no relief in Judge 
Southwick's eyes.
  I understand that the individual is not always right. Big business is 
not always wrong. But no judge should have such a strongly slanted 
track record in one direction or another. 89 percent is a very strongly 
slanted track record.
  That is one reason why the UAW has also come out in strong opposition 
to Judge Southwick's nomination. Another reason the UAW is so strongly 
opposed is Judge Southwick's opinion that the ``employment at will'' 
doctrine, which allows employers to fire workers for any reason, 
``provides the best balance of the competing interests in the normal 
employment situation.'' In other words, he does not believe in 
protecting job security. It is no wonder that the UAW has serious 
concerns about his ability to enforce the National Labor Relations Act, 
title VII of the Civil Rights Act, and other laws that protect 
employees in the workplace and limit ``employment at will.'' I share 
those concerns.
  Let me give you an example. In Cannon v. Mid-South X-Ray Co., Judge 
Southwick refused to allow a woman to receive compensation for the 
debilitating injuries she suffered as a result of being exposed to 
toxic chemicals at work. The majority believed the woman should be able 
to bring her case to trial. Judge Southwick dissented from the 8-2 
decision. He rested his decision on a procedural point--that the statue 
of limitations had tolled--even though the woman did not experience 
symptoms of her poisoning until years after initially being exposed. He 
rested his decision on the fact that she should have brought her case 
before she experienced any symptoms of poisoning. There was a shadow of 
a doubt as to when the clock should have began to run for her case--and 
he found in favor of big business.
  In another case, Goode v. Synergy Corporation, Judge Southwick's 
dissent would have kept a family--whose granddaughter was killed in a 
propane heater explosion--from receiving a new trial even after it 
became clear that the company responsible for the heater had provided 
false information in the original trial. Luckily for the family, the 
majority opinion felt differently.
  Mr. President, our Federal appellate courts are the second most 
powerful courts in our country, deferring only to the Supreme Court on 
a relatively small number of cases each year. For the majority of 
Americans, justice stops there. Now more than ever we need an 
independent judiciary that respects the rights of all Americans, is 
dedicated to colorblind justice, and protects workers and consumers 
from corporate America. We cannot afford to get these nominations 
``wrong.'' These are lifetime appointments that cannot be taken away 
once we grant them.
  In many ways, Judge Southwick is exactly what a judge should not be. 
He brings his personal bias into his decision-making process. He 
consistently sides with the government over defendants, particularly 
African-American defendants. He routinely finds in favor of big 
business at the expense of individual workers and consumers. He does 
not seem to approach his cases with an open mind.
  We cannot place a judge like this on the Federal appellate bench. 
Therefore, I urge my colleagues to vote against the motion to invoke 
cloture, and should that succeed, to unanimously vote against the 
nominee and giving a lifetime appointment to someone who consistently 
decides against African Americans. In a circuit in which they are such 
a huge part of the population, it is simply unacceptable.
  I ask unanimous consent that letters of opposition and concern from 
groups concerned about the environment, the Bazelon Center for Mental 
Health Law, the United Auto Workers, and the African-American Bar 
Association of Dallas, Texas be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Community Rights Counsel; Earthjustice; Friends of the 
           Earth; Sierra Club, Endangered Habitats League, 
           Louisiana Bayoukeeper, Inc., Louisiana Environmental 
           Action Network, San Francisco Baykeeper, Texas Campaign 
           for the Environment, Valley Watch, Inc.,
                                                    June 13, 2007.
     Re nomination of Leslie Southwick to a Lifetime Position on 
         the U.S. Court of Appeals for the Fifth Circuit.
     Hon. Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: We are 
     writing to express serious concerns with the pending 
     nomination of Mississippi attorney and former Mississippi 
     Court of Appeals Judge Leslie Southwick to a lifetime seat on 
     the United States Court of Appeals for the Fifth Circuit, 
     which decides the fate of federal environmental and other 
     safeguards in Texas, Louisiana, and Mississippi.
       Some of these concerns are based upon points made by Judge 
     Southwick in two Mississippi Law Review articles that were 
     published in 2003, while he was on the Mississippi Court of 
     Appeals:
       Leslie Southwick, Separation of Powers at the State Level: 
     Interpretations and Challenges in Mississippi Separation of 
     Powers at the State Level, 72 Miss. L.J. 927 (2003). 
     [Hereinafter Separation of Powers]
       Leslie Southwick, Recent Trends in Mississippi Judicial 
     Rule Making: Court Power, Judicial Recusals, and Expert 
     Testimony, 23 Miss. C. L. Rev. 1 (2003). [Hereinafter Recent 
     Trends]

[[Page 28070]]



   Judge Southwick Supports the Majority Side in the Supreme Court's 
 Federalism Revolution and, Potentially, the ``Constitution in Exile'' 
                                Movement

       Between 1990 and 2001, a 5-4 majority of the Supreme Court 
     struck down federal legislation at a rate rivaled only by the 
     discredited ``Lochner-era'' Court, which blocked the labor 
     reforms of the Progressive Era and the Congressional response 
     to the Depression in the early stages of the New Deal The 
     Court's rulings, often grouped together under the inaccurate 
     label of ``federalism,'' undermined important laws protecting 
     women, senior citizens, minorities, the disabled, and the 
     environment. These rulings have engendered withering 
     criticism from both sides of the political spectrum. For 
     example, Judge John Noonan, a conservative appointed by 
     President Reagan to the Ninth Circuit, declared that the 
     Rehnquist Court had acted ``without justification of any 
     kind'' in doing ``intolerable injury to the enforcement of 
     federal standards.'' ``The present damage,'' Judge Noonan 
     warns, ``points to the present danger to the exercise of 
     democratic government.'' As Senator Specter noted in a letter 
     to then Judge John Roberts, these cases represent ``the 
     judicial activism of the Rehnquist Court.''
       Judge Southwick, writing in 2003, had a much more positive 
     view of these cases. Indeed, he analogized the Court's 
     ``return to first principles'' to a Christian following the 
     Scriptures: ``The Court is insisting on obedience to 
     constitutional structural commandments. It is as if the text 
     that is being followed begins along these lines: In the 
     Beginning, the New World was without Form, and void, and the 
     Patriot Fathers said 'Let There Be States.' Behold, there 
     were States, and it was Good.'' Separation of Powers, at 929. 
     He noted that the ``return by the Supreme Court to the 
     original scripture of federalism, or as some opposed to the 
     outcomes might claim, to the original sin of the 
     constitutional fathers, began in earnest with United States 
     v. Lopez in 1995.'' Id. at 929. The bulk of his article is 
     devoted to explaining how the model set by the Supreme Court 
     can be employed at the state level by the new conservative 
     majority on the Mississippi Supreme Court.
       Even more troubling, at least potentially, is his assertion 
     that ``[f]rom 1937 to 1995, federalism was part of a 
     'Constitution in exile. ''' Id. at 930. Judge Southwick's 
     invocation of this term, coined by D.C. Circuit Judge Douglas 
     Ginsburg, and still relatively obscure outside Federalist 
     Society circles in 2003, suggests that he is supportive of 
     efforts by certain scholars in academia and some judges on 
     the federal bench to restore understandings of the 
     Constitution held by a conservative majority of the Supreme 
     Court in the period before the Great Depression and the New 
     Deal As University of Chicago law professor Cass Sunstein 
     opined in a New York Times Magazine cover story written by 
     Jeffrey Rosen, success of this ``Constitution in Exile'' 
     movement would mean:

     many decisions of the Federal Communications Commission, the 
     Environmental Protection Agency, the Occupational Safety and 
     Health Administration and possibly the National Labor 
     Relations Board would be unconstitutional. It would mean that 
     the Social Security Act would not only be under political but 
     also constitutional stress. Many of the Constitution in Exile 
     people think there can't be independent regulatory 
     commissions, so the Security and Exchange Commission and 
     maybe even the Federal Reserve would be in trouble. Some 
     applications of the Endangered Species Act and Clean Water 
     Act would be struck down as beyond Congress's commerce power.

  Judge Southwick is a Pro-Corporate Partisan in the Mississippi Tort 
                                  Wars

       Over the past decade, Mississippi judges have been engulfed 
     in what Judge Southwick calls ``never-ending and ever-
     escalating tort wars being fought out at every level of the 
     Mississippi court system.'' Recent Trends at * 11. Judge 
     Southwick is clearly a partisan in this war. He criticizes 
     former Mississippi Supreme Court Justice Chuck McRea for ``an 
     interest in crafting precedents that were favorable to the 
     interests of plaintiffs in personal injury actions.'' He 
     calls former Mississippi Governor Ronnie Musgrove ``the 
     poster boy for trial lawyer campaign contributions.'' 
     Separation of Powers at 1027. Judge Southwick is also deeply 
     critical of the litigation against tobacco companies led by 
     former Mississippi Attorney General Michael Moore, favorably 
     quoting another commentator for the proposition that ``[i]f 
     the fallout from the state tobacco litigation is not 
     addressed quickly, it will further distort and destabilize a 
     number of areas of law, including the separation of powers 
     within state governments.'' Separation of Powers at 1032. 
     Finally, Judge Southwick notes that he has been criticized 
     for taking the defendants' side in such cases: ``[o]ther 
     appellate judges, including the author of this article, may 
     from time to time also appear to various observers to have 
     brought their background experiences into play in their 
     rulings on the bench.'' Recent Trends at * 11. Some of these 
     statements--particularly Judge Southwick's pointed 
     depiction'' of the sitting Mississippi Governor--seem a bit 
     intemperate for a sitting judge.
       Moreover, examinations of Judge Southwick rulings by 
     Alliance for Justice and a business advocacy group support a 
     conclusion that Judge Southwick's rulings as a judge favored 
     corporate defendants. In 2004, a business advocacy group gave 
     Judge Southwick the highest rating of any judge on the 
     Mississippi Court of Appeals, based on his votes in cases 
     involving liability issues. B. Musgrave and T. Wilemon, 
     ``Business Group Rates State Justices,'' The Sun Herald (Mar. 
     24, 2004). According to an analysis by the Alliance for 
     Justice, ``Judge Southwick voted, in whole or in part, 
     against the injured party and in favor of special interests, 
     such as corporations or insurance companies, in 160 out of 
     180 published decisions involving state employment law and 
     torts cases in which at least one judge dissented.'' Alliance 
     for Justice, Preliminary Report on the Nomination of Leslie 
     H. Southwick to the Fifth Circuit, at 4-5; http://
independentjudiciary.com/resources/docs/
PreliminaryReportSouthwick.pdf.
       One of the cases included in the Alliance report gives us 
     particular concern because it limits access to courts, which 
     is essential to ensure that Americans have a meaningful right 
     to prevent and redress environmental harms including injury 
     to their health and safety, clean water, clean air, and 
     endangered species. State common law tort, nuisance and other 
     civil remedies often provide invaluable supplementation of 
     limited federal safety, health and environmental statutes. 
     Court rulings that unfairly cut off state common law claims 
     can preclude the most effective or only avenue of relief. 
     Unfortunately, that is what Judge Southwick would have done 
     in his dissent in a case in which the court ruled 8-2 that 
     the statute of limitations did not begin to run until the 
     plaintiff had reason to believe the chemicals that she was 
     exposed to caused her illness. Gannon v. Mid-South X-Ray Co. 
     738 So. 2d 274 (Miss. Ct. App. 1999).
       His record as a judge, combined with Judge Southwick's own 
     words, raise questions about his ability to be a fair and 
     neutral arbiter of environment and other cases that involve 
     the interests of corporate defendants. Concerns about the 
     ability of a judicial nominee to be unbiased go to the heart 
     of the Senate's constitutional advice and consent role. We 
     urge you to carefully consider these concerns, raised by 
     Judge Southwick record, before voting on his proposed 
     nomination to a lifetime position on the Fifth Circuit Court 
     of Appeals.
           Sincerely,
         Doug Kendall, Executive Director, Community Rights 
           Counsel.
         Glenn Sugameli, Senior Judicial Counsel, Earthjustice.
         Dr. Brent Blackwelder, President, Friends of the Earth.
         Pat Gallagher, Director, Environmental Law Program, 
           Sierra Club.
         Dan Silver, Executive Director, Endangered Habitats 
           League.
         Tracy Kuhns, Executive Director, Louisiana Bayoukeeper, 
           Inc.
         Marylee M. Orr, Executive Director, Louisiana 
           Environmental Action Network.
         Sejal Choksi, Baykeeper & Program Director, San Francisco 
           Baykeeper.
         Robin Schneider, Executive Director, Texas Campaign for 
           the Environment.
         John Blair, President, Valley Watch, Inc.
                                  ____

                                                    June 14, 2007.
     Hon. Patrick Leahy,
     Chairman, Senate Judiciary Committee, Russell Senate Office 
         Building, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Judiciary Committee, Russell Senate 
         Office Building, Washington, DC.
       Dear Senator Leahy and Senator Specter: I write to express 
     the opposition of the Bazelon Center for Mental Health Law to 
     the nomination of Leslie Southwick to the Fifth Circuit Court 
     of Appeals. The Bazelon Center is a national nonprofit 
     organization that advocates for the rights of individuals 
     with mental disabilities through litigation, policy advocacy, 
     education and training. The Center previously expressed 
     concern about the nomination; we now feel it is appropriate 
     to express our opposition.
       Judge Southwick apparently holds a narrow view of federal 
     power that suggests that he would invalidate portions of 
     critical civil rights legislation if appointed. He has 
     characterized the Supreme Court as returning to the 
     ``scripture'' of the Constitution by striking down portions 
     of the Violence Against Women Act and Gun Free School Zones 
     Act, and hampering Congress's power to abrogate sovereign 
     immunity to protect Native Americans. Leslie Southwick, 
     Separation of Powers at the State Level, 72 Miss. L. J. 927, 
     930-31 (2003). Southwick also indicated his apparent support 
     for the ``Constitution in exile'' movement, a radical 
     ideology that would undo seventy years of Supreme Court 
     rulings, dramatically undermining the federal government's 
     power.
       These issues are of paramount concern to the disability 
     community because the Americans with Disabilities Act (ADA), 
     Section 504 of the Rehabilitation Act, and the Individuals 
     with Disabilities Education Act (IDEA) have been the targets 
     of repeated attacks on federalism grounds, and the 
     constitutionality of these laws has been hotly contested in 
     the federal courts.
       Southwick's nomination to the Fifth Circuit is especially 
     troubling because that

[[Page 28071]]

     court is already closely divided on the constitutionality of 
     disability rights legislation. See Pace v. Bogalusa City 
     School Bd., 325 F.3d 609 (5th Cir. 2003) (Congress did not 
     validly abrogate state sovereign immunity in the IDEA), 
     rev'd, 403 F.3d 272 (5th Cir. 2005) (5 judges dissenting); 
     McCarthy v. Hawkins, 481 F.3d 407 (5th Cir. 2004) (upholding 
     ADA's community integration mandate against commerce clause 
     challenge in divided vote); Neinast v. Texas, 217 F.3d 275; 
     (5th Cir. 2000) (Congress lacked authority under Fourteenth 
     Amendment Section 5 to enact the ADA's bar on imposing 
     handicapped parking placard surcharges on individuals with 
     disabilities). Southwick's addition to the Fifth Circuit 
     would increase the likelihood that critical disability rights 
     protections would be eliminated in that Circuit.
       This lifetime position should be held by someone who 
     respects Congress's authority to enact needed civil rights 
     protections, including protections for individuals with 
     disabilities.
           Sincerely,

                                             Robert Bernstein,

                                Executive Director, Bazelon Center
     for Mental Health Law.
                                  ____

         International Union, United Automobile, Aerospace & 
           Agricultural Implement Workers of America--UAW,
                                                 October 22, 2007.
       Dear Senator: This week the Senate may take up the 
     nomination of Mississippi Judge Leslie H. Southwick to the 
     5th Circuit Court of Appeals. The UAW urges you to oppose his 
     nomination and to vote against any attempt to invoke cloture 
     on this nomination.
       Judge Southwick's record as a judge on the Mississippi 
     Court of Appeals is deeply troubling. He has consistently 
     ruled against workers seeking compensation for injuries 
     suffered on the job. He has also opined that the ``employment 
     at will'' doctrine, which allows employers to fire workers 
     for any reasons, ``provides the best balance of the competing 
     interests in the normal employment situation.'' This raises 
     serious questions about his ability to enforce the National 
     Labor Relations Act, Title VII of the Civil Rights Act, and 
     other laws that protect employees in the workplace and limit 
     ``employment at will.''
       Judge Southwick also joined the court's 5-4 decision in 
     Richmond v. Mississippi Department of Human Services, 
     upholding the reinstatement of a state social worker who was 
     fired for using a despicable racial epithet in a 
     condescending reference to a co-worker. This decision reveals 
     a disturbing lack of understanding for the negative impact of 
     this language. In addition, a review of Judge Southwick's 
     decisions reveals a disturbing pattern in which he 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.
       For all of these reasons, the UAW believes that Judge 
     Southwick's confirmation would endanger core worker and civil 
     rights protections. Accordingly, we urge you to vote against 
     his nomination and against any attempt to invoke cloture to 
     cut off debate on his nomination.
       Thank you for considering our views on this issue.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

         The African-American Bar Association of Dallas, Texas,
                                                     June 6, 2007.
     Re nomination of Leslie Southwick to the United States Court 
         of Appeals for the Fifth Circuit.
     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Russell Office 
         Building, U.S. Senate, Washington, DC.
       Dear Senator Leahy: The J.L. Turner Legal Association 
     (``JLTLA''), the premier organization for African-American 
     attorneys in Dallas, Texas, writes to register its opposition 
     to the nomination of Leslie Southwick to the United States 
     Court of Appeals to the Fifth Circuit. In so doing, we join 
     with Senator Barack Obama, the Magnolia Bar Association, the 
     Alliance for Justice and the National Employment Lawyers 
     Association, among others, in voicing concerns about Judge 
     Southwick's fitness for elevation to a lifetime appointment 
     to the federal appellate bench.
       More significantly, the JLTLA is deeply disturbed by the 
     Bush Administration's consistent and highly objectionable 
     pattern of selecting ultra-conservative, non-diverse 
     candidates to serve on the most racially diverse federal 
     circuit in the country. The Fifth Circuit, comprised of 
     Mississippi, Louisiana and Texas, is home to more African-
     Americans than any other federal circuit, with the possible 
     exception of the Fourth Circuit. Only one African-American 
     judge, Carl Stewart, currently serves on the Fifth Circuit. 
     Bush has, moreover, nominated no African-Americans to the 
     Fifth Circuit. After Charles Pickering and Mike Wallace, 
     Judge Southwick's nomination could only very generously be 
     described as yet another ``slap in the face'' to the diverse 
     populations of the Fifth Circuit.
       Further, this appointment reflects the Bush 
     Administration's clear disregard for the will of the American 
     people given the significantly dynamic change in Congress. 
     The dramatic outcome of the midterm Congressional election 
     signals that Americans are seeking a new landscape rather 
     than leaving an even more conservative footprint on what is 
     now one of the most conservative Circuits in the nation.
       Historically, the Fifth Circuit served as the vanguard for 
     the advancement of civil and human rights, particularly with 
     regard to the implementation of the U.S. Supreme Court's 
     dictates following its historic ruling in Brown v. Board of 
     Education et al. The last 20 years, however, have marked a 
     notable retrenchment in the Fifth Circuit's commitment to 
     civil rights. Judge Southwick's elevation to the Fifth 
     Circuit would only strengthen the conservative leanings of 
     this Court, and further alienate the diverse citizens of this 
     Circuit.
       We trust that you will call upon all of your colleagues on 
     the Judiciary Committee to reject this nomination, and call 
     on the President to select a consensus nominee that would 
     bring greater balance to the Fifth Circuit.
           Very truly yours,
                                           Vicki D. Blanton, Esq.,
                                                 President, JLTLA.

  The PRESIDING OFFICER (Mr. Cardin). The Senator from Texas is 
recognized.
  Mr. CORNYN. Mr. President, I rise to make a few brief remarks on this 
nomination to the United States Court of Appeals for the Fifth Circuit, 
which serves the residents of Mississippi, Louisiana, and my State of 
Texas.
  Judge Leslie Southwick has served for almost 12 years on the 
Mississippi Court of Appeals where he has participated in thousands of 
cases in almost every area of State civil and criminal law. He is, by 
all accounts--notwithstanding some of the attacks by interest groups 
that we have heard recounted here today--a respected member of that 
court and an honorable and decent man. Notably, he took a leave from 
the bench to volunteer to serve his Nation in Iraq. I ask: What kind of 
man would give up a cushy job on the Mississippi Court of Appeals to 
put his life on the line in Iraq?
  The American Bar Association has unanimously found Judge Southwick 
``well qualified'' to serve on the Fifth Circuit, which is the highest 
rating the American Bar Association gives. It is important to point out 
that the American Bar Association investigates the background of these 
nominees, talks to litigants who appeared before them, talks to other 
judges and leaders of the legal community, and they have concluded that 
instead of the comments we have heard today attacking the integrity of 
this public servant, that he deserves the highest rating of the 
American Bar Association.
  For whatever reason, this honorable public servant has been dragged 
through the mud in this confirmation proceeding and, in my opinion, has 
been slandered by some of his critics. Judge Southwick has been called 
an ``arch-reactionary,'' a ``neoconfederate,'' ``hostile to civil 
rights,'' everything but the word ``racist,'' although that has been 
implied time and time again.
  Judge Southwick's nomination was opposed by 9 of the 10 Democrats on 
the Senate Judiciary Committee. But, to her credit, Mrs. Feinstein, the 
Senator from California, declined to be strong-armed by the interest 
groups who are whipping up manufactured hysteria when it comes to 
opposing this nominee. Announcing that she found ``zero evidence to 
support the charges against Judge Southwick,'' Senator Feinstein joined 
the nine Republicans on the committee to advance the nomination to the 
Senate floor.
  What was never answered in the Judiciary Committee's debate over this 
nomination is why the same panel had, just a year earlier, unanimously 
approved him for a seat on the Federal District Court bench. I posed 
this question to my colleagues during the Judiciary Committee debate:

       If there is a concern out there that Judge Southwick is not 
     qualified because of some perceived racial problem, why in 
     the world would that opposition deem him acceptable to be a 
     Federal District Court judge?
       Think about that a second. The discretion afforded a 
     District Court judge is so much greater than that on the 
     court of appeals--from the start of a trial, through voir 
     dire and juror strikes, through evidentiary rulings, and jury 
     instructions. I trust that my

[[Page 28072]]

     colleagues would never vote for someone with a perceived race 
     problem for life tenure in a role with such enormous 
     discretion. We all know that there was no objection at the 
     time he came before the committee for a Federal District 
     bench because, the fact is, the allegations against him had 
     been manufactured since that time.

  There is no legitimate concern about Judge Southwick's character or 
record. This is just the latest incarnation of the dangerous game being 
played with the reputations and lives of honorable public servants.
  The Republican leader put it this way:

       When do we stop for the sake of the institution, for the 
     sake of the country, and for the sake of the party that may 
     not currently occupy the White House? When do we stop?

  The Washington Post's editorial page, along with the respected legal 
affairs columnist Stuart Taylor, both lamented the treatment afforded 
Judge Southwick who has yet to be confirmed by the Senate but hopefully 
will be today. Stuart Taylor's column is appropriately titled 
``Shortsighted on Judges.'' He writes:

       The long-term cost to the country is that bit by bit, 
     almost imperceptibly, more and more of the people who would 
     make the best judges--liberal and conservative alike--are 
     less and less willing to put themselves through the ever-
     longer, ever-more-harrowing gauntlet that the confirmation 
     process has become.

  The attacks on Judge Southwick, unfortunately, have come to typify 
the kinds of vicious, gratuitous, personal attacks that are occurring 
with greater frequency against judicial nominees.
  I wonder if there is a Member of this body who doesn't think we need 
to improve the tone and rhetoric of the judicial confirmation process. 
When good men and women decline the opportunity to serve on the Federal 
bench out of disdain for this unnecessarily hostile process, the 
administration of justice in this Nation can only be the worst for it.
  I urge my colleagues to send a strong message today with this vote 
that these unwarranted, baseless attacks on Leslie Southwick are 
beneath the dignity of the Senate. At some point in time we have to 
stop it, and I can think of no better time than now with this 
outstanding public servant.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, after the Senator from Illinois speaks, I 
would like to yield 7 minutes to the Senator from Arizona, Mr. Kyl.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, a few weeks ago, our Nation witnessed one 
of the largest civil rights rallies in decades. It was a rally to 
condemn hate crimes and racial disparities in our criminal justice 
system. It occurred in a town in Louisiana that most of us never heard 
of, Jena, LA. That small town captured the attention of America. Why? 
Well, because of an incident that occurred at a high school where there 
was a tree that White students traditionally gathered under.
  School officials came to the conclusion it was time that all students 
could sit under the tree. In protest for that decision, White students 
hung nooses from the tree. Nooses, the ancient symbol of hatred and 
bigotry.
  Well, that incident led to other incidents, fights between Black and 
White students at the school. Three White students who put the nooses 
in the tree were given a 3-day suspension from the school, a 3-day 
suspension.
  In contrast, the Jena district attorney, who was White, brought 
criminal charges for attempted murder against 6 African-American 
teenagers, the so-called Jena 6.
  If convicted on all the charges, the African-American students could 
have served a combined total of more than 100 years in prison. One 
hundred years in prison for 1 group of students, a 3-day suspension for 
others. It is no wonder this captured the attention of the Nation.
  Squabbling, fighting among students, led to serious criminal charges 
for some and a very slight reprimand for others. This is not the first 
time America has faced this kind of disparity in justice. Sadly, it is 
not likely to be the last. Some of us in my age group can recall the 
struggles of the 1960s when civil rights became a national cause in 
America, when all of us, Black, White, and brown, North and South, were 
forced to step back and take a look at the America we live in and make 
a decision as to whether it would be a different country.
  We look back now as we celebrate Dr. Martin Luther King's birthday 
and observances with fond remembrance of that era. But I can remember 
that era, too, as being one of violence and division in America. I can 
recall when Dr. King decided to come to the Chicago area and lead a 
march. It was a painful, violent experience in a State I love.
  I look back on it because I want to make it clear: Discrimination is 
not a Southern phenomena, it is an American phenomena. But in the 
course of the civil rights struggle in the 1960s, there were some real 
heroes, and one of them was a man I dearly love and served with in the 
House, John Lewis.
  John Lewis, a young African-American student, decided to engage in 
sit-ins, and when that did not succeed, he moved on to the next level, 
the freedom bus rides. He risked his life taking buses back and forth 
across the South to establish the fact that all people, regardless of 
their color, should be given a chance.
  And then, of course, the historic march in Selma. John Lewis was 
there that day. I know because I returned to that town a few years ago 
with him and he retraced his footsteps. He showed us how he walked over 
that bridge as a young man. As he was coming down on the other side of 
the bridge, he saw gathered in front of him a large group of Alabama 
State troopers. As they approached the troopers, the troopers turned on 
the marchers and started beating them with clubs, including John.
  John was beaten within an inch of his life, knocked unconscious. 
Thank God he survived. I thought about that because I wanted to be 
there at that Selma march. I was a student here in Washington at the 
time and for some reason could not make it and have regretted it ever 
since.
  But as we were driving back from Selma, I recall that John Lewis said 
something to me which stuck. He said: You know, there was another hero 
on that Selma march who does not get much attention; his name was Frank 
Johnson. Frank Johnson was a Federal district court judge and later a 
Federal circuit court judge in the Fifth Circuit, which at the time 
included the State of Alabama. John Lewis said: If it were not for the 
courage of Frank Johnson, who gave us the permission to march, there 
never would have been a march in Selma. Who knows what would have 
happened to the civil rights movement.
  Well, Frank Johnson is a man who has been celebrated in his career as 
a jurist for his courage. He and his family faced death threats. They 
were under constant guard for years because of the courageous decisions 
he made that moved us forward in the civil rights movement.
  I had a chance to meet with 2 prospective nominees to the Supreme 
Court before their confirmations, Chief Justice Roberts and Justice 
Alito. I gave both of them this book, ``Taming the Storm,'' written by 
Jack Bass--which is a biography of Frank Johnson--hoping that in their 
busy lives they might take the time to read these words about his 
courage and his life and be inspired in their own responsibilities.
  There are so many things that have been said and written about Frank 
Johnson's courage as a judge, a circuit judge in the same circuit we 
are considering today. One of them was written by a fellow who served 
in the Senate. I didn't have the chance to serve with him, but I heard 
so many wonderful things about him, Howell Heflin. Senator Howell 
Heflin of Alabama introduced a bill to name the U.S. courthouse in 
Montgomery, AL, for Frank Johnson, Jr.
  This is what he said: Judge Johnson's courtroom has been a living 
symbol of decency and fairness to all who come before his bench. It is 
from this courthouse that the term ``rule of law'' came to have true 
meaning; it is from this courthouse that the term ``equal protection of 
the law'' became a reality;

[[Page 28073]]

and it is from this courthouse that the phrase ``equal justice under 
law'' was dispensed despite threats to his personal life.
  Frank Johnson, circuit judge, Fifth Circuit, had the courage to make 
history and the power to change America. It is a high standard, and it 
is not for all of us, whether you are a Member of the Senate or seek to 
be on the Federal judiciary.
  It is particularly an important standard to consider with the 
nomination of Leslie Southwick. There are so many good things to say 
about Leslie Southwick, if you read his biography, things he has done 
in his military service, his service in many respects.
  But he is asking to serve on Frank Johnson's circuit court, the Fifth 
Circuit. I guess many of us believe it is a particularly important 
circuit for the same reason it was in the time of Frank Johnson.
  That Fifth Circuit is still a crucible for civil rights. That Fifth 
Circuit contains Jena, LA. That is a circuit which many times has been 
called upon to make important historic decisions about fairness and 
equality in America.
  So, yes, I know we ask more of the nominees for that circuit. We know 
it has a higher minority population than any other circuit in America. 
We know the State of Mississippi, the home of Leslie Southwick, has the 
highest percentage of African-Americans.
  Yesterday, the Congressional Black Caucus came to meet with the 
Senate leadership. It is rare that they do that. Congresswomen Carolyn 
Kilpatrick and Eleanor Holmes Norton and others came to speak to us.
  The depth of emotion in their presentation is something that touched 
us all. Members of the Senate who have been through a lot of debates 
and a lot of nominations, many of them were misty-eyed in responding to 
the feelings, the deep-felt feelings of these African-American 
Congresswomen about this nomination.
  Bennie Thompson of Mississippi, the only Black Congressman from that 
delegation, talked about what this meant to him, how important it was 
to have someone who could start to heal the wounds of racism and 
division in the State he lived in. It touched every single one of us.
  I asked Leslie Southwick a question at his nomination hearing under 
oath; it was as open-ended as I could make it. I asked him:

       Can you think of a time in your life or career where you 
     did bend in that direction, to take an unpopular point of 
     view on behalf of those who were voiceless or powerless and 
     needed someone to stand up for their rights when it wasn't a 
     popular position?

  Judge Southwick responded:

       I hope that a careful look--and the answer is, no, I cannot 
     think of something now. But if I can give you this answer. I 
     cannot recall my opinions, and I don't think of them in those 
     terms.

  By every standard that was a softball question. I asked this man to 
reflect on his personal and professional life and talk about a Frank 
Johnson moment, when he stood up to do something that was unpopular but 
right for someone who did not have the power in his courtroom.
  I even sent him a followup written question because I wanted to be 
fair about this. And he still could not come up with anything. It is 
troubling. I hope that if the Senate rejects this nomination, the 
Senators in the Fifth Circuit, particularly from Mississippi, will 
bring us a nominee for this circuit who can start to heal the wounds, 
who can bring us back together, who can give hope to the minorities and 
dispossessed in that circuit that they will get a fair shake if their 
cases come to court.
  I hope they can reach back and find us a Frank Johnson, someone in 
that mold, someone who can answer that open-ended question in a very 
positive way.
  Today, I will vote against cloture and oppose the nomination of 
Leslie Southwick.
  I yield the floor.
  Mr. SPECTER. Mr. President, how much time remains on the Republican 
side?
  The PRESIDING OFFICER. There is 45 minutes 17 seconds.
  Mr. SPECTER. Mr. President, I yield 7 minutes to the Senator from 
Arizona. I will yield 10 minutes jointly to the senior Senator from 
Arizona, Mr. McCain, and Senator Graham, which will come in sequence 
after we alternate with the Democrats.
  Mr. WHITEHOUSE. Mr. President, it is my understanding that Senator 
Schumer of New York wishes to be recognized for 10 minutes at 10 
o'clock, which just about coincides with what the Senator from 
Pennsylvania has indicated.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I rise in support of Judge Southwick. There 
is no question that the nominee is qualified to serve. I do not need to 
repeat his qualifications. Senators Specter and Feinstein did that very 
well last night. There is no question that he has had an impressive 
life of service.
  Nobody can question the service of a man who joins the Army Reserves 
at age 42 and then requests duty in a war zone when he is past the age 
of 50. I will suggest, by the way, that might have been a good answer 
to the question that Senator Durbin proposed a moment ago. His life is 
a life of service, and I believe we should honor him for that.
  There is no question the Nation would be well served by his service 
on the bench. There is also no question the questions about him have 
been contrived, and there is no question there is more at stake today 
than the confirmation of Judge Leslie Southwick.
  My colleagues should think long and hard about voting against cloture 
and about what has happened to this nomination. Until the year 2003, no 
circuit court nominee has been denied confirmation in this body due to 
a filibuster. Only Abe Fortas faced a real filibuster attempt, and 
obviously he had ethics issues which caused him to withdraw after it 
was clear he lacked even majority support.
  Since that time, the convention throughout the 1970s and 1980s and 
1990s was to reject this path of filibustering nominees. Senators did 
not like some nominees, but they did not require cloture. When a few 
Senators tried to impose a cloture standard, the Senate united, on a 
bipartisan basis, to reject that 60-vote standard.
  In fact, then-Majority Leader Lott and then-Judiciary Chairman Hatch 
led the fight against requiring cloture in 2000 when we voted on 
Clinton nominees Paez and Berzon. The vast majority of Republicans 
rejected any filibuster of judicial nominees.
  But in 2003 things began to change. Liberal activist groups pursued 
many Democrats to apply a different standard. From 2003 to 2005, 
Democrats actively filibustered several nominees.

       I recall the Senator from Nevada saying: ``This is a 
     filibuster.''

  Well, it was a brandnew world, and many realized it was not good. A 
group of Senators, 7 from both parties, got together and worked out an 
arrangement which would preclude this from happening in the future 
because it was not good and was setting a very bad precedent in the 
Senate.
  In 2005, most of the people on both sides of the aisle backed down 
from this precipice and the Democrats agreed that in light of the 
opposition to what they had been doing, their obstructionism, that they 
would no longer do that.
  Unfortunately, today we are seeing a rise, a rejuvenation of those 
earlier efforts. It strikes me as exceedingly shortsighted and needs to 
stop. Senator Feinstein's thoughtful speech last night set the 
standard.
  She concluded the speech with the following words, relating to Judge 
Southwick:

       He is not outside the judicial mainstream. That's the 
     primary criterion I use when evaluating an appellate nominee. 
     And I expect future nominees of Democratic Presidents to be 
     treated the same way.

  Well, that is the real question, Mr. President: Will Senator 
Feinstein's expectation become the reality? I wish I could say yes, but 
it may not occur that way if cloture is not granted to Judge Southwick, 
and that is the larger question.
  Until now, my Republican colleagues and I have been clear that we 
think judicial filibusters are inappropriate. I

[[Page 28074]]

suggest today's vote is a watershed. If Senate Democrats decide to 
filibuster Judge Southwick today, a clearly qualified nominee, they 
should not be surprised if they see similar treatment for Democratic 
nominees. This cannot be a one-sided standard. So this isn't just a 
vote about Judge Southwick; it is about the future of the judicial 
nomination process. If Leslie Southwick can't get an up-or-down vote, 
then I suspect no Senator should expect a future Democratic or 
Republican President to be able to count on their nominees not to be 
treated in the same fashion. Any little bit of controversy could be 
created to create the kind of hurdles Judge Southwick is facing today.
  Senator Specter and Senator Feinstein have made clear there is 
nothing to these supposed controversies that have been generated around 
Leslie Southwick. They are largely inventions of the activist left and 
don't hold up in the light of scrutiny.
  So what of the future? If a Republican wants to block a Democratic 
President's nominee, all one would need would be the allegation of a 
controversy. Pick out a case. Raise questions about motivation. Ignore 
the plain language of a court opinion. Speculate. Ignore the man's 
character.
  The Senator from Illinois spoke movingly a little while ago about 
civil rights, John Lewis, Frank Johnson, Martin Luther King, all of 
which are very important to any debate, but very little of Leslie 
Southwick--no evidence that he would not apply the same standard in 
judging civil rights matters, just an insinuation because he didn't 
answer a question about whether he had ever done something unpopular 
but right. Well, that is not a disqualification from serving on the 
court.
  So think about the nominees whom you might want to recommend. Could 
an activist group gin up a controversy about your nominee? Is there 
anything in his or her past that could be misconstrued, distorted, or 
painted in an unfair light?
  Senator Feinstein asked for a system in which we simply asked whether 
nominees are in the mainstream and, obviously, are they qualified? She 
asks that we apply that standard in the future. That is the standard we 
should be applying on both sides. But if things go badly today and 
Judge Southwick is treated as poorly as he has been treated so far, 
then I would have to say that nobody can count on what that standard 
could be in the future.
  Vote for cloture today, my friends, because Judge Southwick is an 
American patriot who has devoted his life to service. Vote for cloture 
because he is qualified to serve on the bench. But if that isn't 
enough, vote for cloture to save future nominees from the same kind of 
problem that has been attendant to this nominee and the potential that 
a different standard will be applied in the future with respect to 
confirming our nominees. That would take us down the wrong path.
  Senator Feinstein is right. We should confirm this nominee.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I have a brief unanimous consent 
request that the Senator from Arizona has given me the courtesy of 
propounding before he speaks.
  Mr. President, I ask unanimous consent to have printed in the Record 
letters of opposition from People For the American Way, the West Texas 
Employment Lawyers Association, the National Gay and Lesbian Task 
Force, and the National Council of Jewish Women.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  People for the American Way,

                                     Washington, DC, May 30, 2007.
     Re Leslie Southwick.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Leahy and Senator Specter: I am writing on 
     behalf of People For the American Way and our more than 
     1,000,000 members and supporters nationwide to express our 
     strong opposition to the confirmation of Mississippi lawyer 
     and former state court judge Leslie Southwick to the United 
     States Court of Appeals for the Fifth Circuit. Apart from the 
     fact that much of Judge Southwick's record has not yet been 
     provided to the Committee for its consideration, what is 
     known of that record is disturbing, particularly in 
     connection with the rights of African Americans, gay 
     Americans, and workers. Moreover, given that the states 
     within the jurisdiction of the Fifth Circuit (Mississippi, 
     Louisiana, and Texas) have the highest percentage of 
     minorities in the country, we deem it of great significance 
     that the NAACP of Mississippi and the Congressional Black 
     Caucus are among those opposing Southwick's confirmation.
       As you know, Judge Southwick has been nominated by 
     President Bush to fill a seat on the Fifth Circuit that the 
     President has previously attempted to fill with Charles 
     Pickering and then with Michael Wallace, both of whose 
     nominations were met with substantial opposition, in large 
     measure because of their disturbing records on civil rights. 
     As you will recall, on May 8, 2007, jointly with the Human 
     Rights Campaign (which has since announced its opposition to 
     Southwick's confirmation), we sent the Committee a letter 
     expressing our very serious concerns about Judge Southwick's 
     nomination, observing that, once again, President Bush had 
     chosen a nominee for this seat who appeared to have a 
     problematic record on civil rights. In particular, our letter 
     discussed in detail the troubling decisions that Judge 
     Southwick had joined in two cases raising matters of 
     individual rights that strongly suggested he may lack the 
     commitment to social justice progress to which Americans are 
     entitled from those seeking a lifetime appointment to the 
     federal bench. Those decisions take on added significance 
     because the intermediate state appellate court on which Judge 
     Southwick sat does not routinely consider the types of 
     federal constitutional and civil rights matters that would 
     shed a great deal of light on a judge's legal philosophy 
     concerning these critical issues. As further discussed below, 
     Judge Southwick's confirmation hearing on May 10 did not 
     allay the concerns raised by these decisions or by other 
     aspects of his record.
       In one of the cases discussed in our earlier letter, 
     Richmond v. Mississippi Department of Human Service, 1998 
     Miss. App. LEXIS 637 (Miss. Ct. App. 1998), reversed, 745 So. 
     2d 254 (Miss. 1999), Judge Southwick joined the majority in a 
     5-4 ruling that upheld the reinstatement with back pay of a 
     white state employee who had been fired for calling an 
     African American co-worker a ``good ole nigger.'' The 
     decision that Judge Southwick joined effectively ratified a 
     hearing officer's opinion that the worker's use of the racial 
     slur ``was in effect calling the individual a `teachers 
     pet'.'' 1998 Miss. App. LEXIS 637, at *19. The hearing 
     officer considered the word ``nigger'' to be only ``somewhat 
     derogatory,'' felt that the employer (the Mississippi 
     Department of Human Services no less) had ``overreacted'' in 
     firing the worker, and was concerned that other employees 
     might seek relief if they were called ``a honkie or a good 
     old boy or Uncle Tom or chubby or fat or slim.'' Id. at *22-
     23.
       Four of Judge Southwick's colleagues dissented. Two would 
     have upheld the decision by DHS to fire the worker. Two 
     others, also joined by one of the other dissenters, objected 
     to the Employee Appeals Board's failure to impose any 
     sanctions at all on the worker, noting a ``strong presumption 
     that some penalty should have been imposed.'' Id. at *18. The 
     three judges issued a separate dissent and would have 
     remanded the case so that the board could impose ``an 
     appropriate penalty or produce detailed findings as to why no 
     penalty should be imposed.'' Id. at *18. Significantly, Judge 
     Southwick chose not even to join this three-judge dissent 
     that would have remanded the case so that some disciplinary 
     action short of firing the worker could have been imposed on 
     her for having referred to a co-worker by a gross racial 
     slur, ``in a meeting with two of the top executives of DHS.'' 
     Id. at *28.
       As we discussed in our earlier letter, the Mississippi 
     Supreme Court unanimously reversed the ruling that Southwick 
     had joined. The Supreme Court majority ordered that the case 
     be sent back to the appeals board to impose a penalty other 
     than termination or to make detailed findings as to why no 
     penalty should be imposed--the position taken by three of 
     Judge Southwick's colleagues. Some of the justices on the 
     Supreme Court would have gone even further and reinstated the 
     decision by DHS to fire the worker. But all of the Supreme 
     Court justices rejected the view of the Court of Appeals 
     majority (which included Southwick) that the board had not 
     erred in ordering the worker's reinstatement without 
     imposition of any disciplinary action.
       In the second case that we discussed in our May 8 letter, 
     S.B. v. L.W., 793 So. 2d 656 (Miss. Ct. App. 2001), Judge 
     Southwick joined the majority in upholding--over a strong 
     dissent--a chancellor's ruling taking an eight-year-old girl 
     away from her bisexual mother and awarding custody of the 
     child to her father (who had never married her mother), in 
     large measure because the mother was living with another 
     woman in ``a lesbian home.'' In addition to the disturbing 
     substance of the majority's ruling, its language is also 
     troubling, and refers repeatedly to what it calls

[[Page 28075]]

     the mother's ``homosexual lifestyle'' and her ``lesbian 
     lifestyle.''
       Judge Southwick not only joined the majority opinion 
     upholding the chancellor's ruling, but alone among all the 
     other judges in the majority, he joined a concurrence by 
     Judge Payne that was not only gratuitous, but gratuitously 
     anti-gay. As we have previously observed, the concurrence 
     appears to have been written for the sole purpose of 
     underscoring and defending Mississippi's hostility toward gay 
     people and what it calls ``the practice of homosexuality'' 
     (id. at 662), in response to the position of the dissenters 
     that the chancellor had erred. (The word gay is not used; the 
     concurrence refers repeatedly to ``homosexuals'' and 
     ``homosexual persons.'') Among other things, the concurrence 
     suggests that sexual orientation is a choice, and explicitly 
     states that while ``any adult may choose any activity in 
     which to engage,'' that person ``is not thereby relieved of 
     the consequences of his or her choice.'' Id. at 663. In other 
     words, according to Judge Southwick, one consequence of being 
     a gay man or a lesbian is possibly losing custody of one's 
     child.
       In addition, and as we noted in our May 8 letter, the 
     concurrence claimed that ``[u]nder the principles of 
     Federalism, each state is permitted to set forth its own 
     public policy guidelines through legislative enactments and 
     through judicial renderings. Our State has spoken on its 
     position regarding rights of homosexuals in domestic 
     situations.'' Id, at 664. Thus, according to the separate 
     concurrence that Southwick chose to join, the states' rights 
     doctrine gave Mississippi the right to treat gay people as 
     second-class citizens and criminals. The views expressed in 
     this concurrence strongly suggest that Judge Southwick is 
     hostile to the notion that gay men and lesbians are entitled 
     to equal treatment under the law.
       Unfortunately, Judge Southwick's testimony at his May 10 
     hearing and his response to post-hearing written questions 
     did not resolve and in fact underscored the very serious 
     concerns that we and others had raised about his record and 
     in particular his decisions in these cases. For example, in 
     response to Senator Kennedy's post-hearing question about 
     why, in the Richmond case, Judge Southwick had ``accept[ed] 
     the employee's claim that [the racial slur] was not 
     derogatory,'' Judge Southwick stated that while the word is 
     derogatory, ``there was some evidence that [the worker] had 
     not been motivated by hatred or by animosity to an entire 
     race,'' and further stated that the opinion he joined had 
     recounted evidence that the employee's use of the racial slur 
     ``was not motivated by a desire to offend.'' Judge 
     Southwick's answers reflect far too cramped an appreciation 
     of the magnitude of the use of this gross racial slur 
     anywhere, let alone to refer to a co-worker in Mississippi.
       Senator Kennedy also asked Judge Southwick why, ``[e]ven if 
     you did not think a worker should be fired for using a racial 
     slur--why not at least let the employer impose some form of 
     discipline?'' Southwick replied that ``[n]either party 
     requested that any punishment other than termination be 
     considered.'' However, as noted above, three of Judge 
     Southwick's dissenting colleagues and the state Supreme Court 
     found no impediment to concluding that even if termination 
     were not warranted by the use of this offensive racial slur, 
     the case should have been sent back so that some form of 
     lesser punishment could be considered.
       The custody case was also the subject of much questioning 
     at Judge Southwick's hearing and in post-hearing questions. 
     When Judge Southwick was asked at his hearing about his 
     decision to uphold the chancellor's ruling to deprive the 
     mother of custody of her daughter, in large measure because 
     of her sexual orientation, Judge Southwick repeatedly 
     insisted that a parent's ``morality'' was a relevant factor 
     in a Mississippi custody case, the clear implication being 
     that Southwick considers gay men and lesbians to be immoral. 
     And he also observed that Bowers v. Hardwick, 478 U.S. 186 
     (1986), upholding anti-gay ``sodomy'' laws, was then good law 
     (not yet having been overturned by the Supreme Court in 
     Lawrence v. Texas, 539 U.S. 558 (2003)).
       However, when Senator Durbin in his post-hearing questions 
     expressly asked Judge Southwick whether he would have voted 
     with the majority or the dissent in Lawrence (which, as 
     noted, overruled Bowers), Judge Southwick did not answer this 
     question, instead giving what appears to have become the rote 
     answer of all nominees to lower courts--that if confirmed 
     they will be ``bound to'' and will follow precedent. 
     Particularly in light of Judge Southwick's reliance on the 
     much-discredited and since overruled Bowers v. Hardwick, his 
     refusal to answer Senator Durbin's question is quite 
     disturbing, and further calls into question whether he can 
     apply the law fairly to all Americans.
       Judge Southwick's decisions in Richmond and in S.B. raise 
     enormous red flags about his legal views. These are the types 
     of cases that draw back the curtains to reveal critical 
     aspects of a judge's legal philosophy and ideology. We simply 
     cannot conceive of any situation in which calling an African 
     American by the racial slur used in the Richmond case would 
     be akin to calling her ``a teacher's pet,'' and we cannot 
     fathom describing that slur as only ``somewhat'' derogatory, 
     as the hearing officer did in an opinion essentially ratified 
     by Judge Southwick. As America's recent experience with the 
     racially offensive remarks leveled at the young women of the 
     Rutgers University basketball team has shown, most of our 
     country has progressed beyond racial slurs and recognizes the 
     right of every individual to be treated with dignity 
     regardless of race.
       And we agree with the Human Rights Campaign, which stated 
     in its May 23, 2007 letter to the Committee opposing Judge 
     Southwick's confirmation, that if Judge Southwick ``believes 
     that losing a child is an acceptable `consequence' of being 
     gay, [he] cannot be given the responsibility to protect the 
     basic rights of gay and lesbian Americans.'' Every American, 
     regardless of his or her sexual orientation, should likewise 
     be accorded equality of treatment and dignity under the law.
       Unfortunately, Judge Southwick's decisions in Richmond and 
     S.B. call into serious question his understanding of and 
     commitment to these fundamental principles. Moreover, these 
     decisions are far from the only troubling aspects of his 
     record. As the Mississippi State Conference of the NAACP has 
     observed in connection with Judge Southwick's rulings on race 
     discrimination in jury selection, ``[d]ozens 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.'' Indeed, in 
     one such case, three other judges on Southwick's court 
     harshly criticized him in a dissent, accusing the majority 
     opinion written by Southwick of ``establishing one level of 
     obligation for the State, and a higher one for defendants on 
     an identical issue.'' Bumphis v. State, No. 93-KA-01157 COA 
     (Miss. Ct. App., July 2, 1996).
       During his time on the state court of appeals, Judge 
     Southwick also compiled a strikingly pro-business record in 
     divided rulings. According to an analysis by the Alliance for 
     Justice, ``Judge Southwick voted, in whole or in part, 
     against the injured party and in favor of special interests, 
     such as corporations or insurance companies, in 160 out of 
     180 published decisions involving state employment law and 
     torts cases in which at least one judge dissented. In 2004, a 
     business advocacy group gave Judge Southwick the highest 
     rating of any judge on the Mississippi Court of Appeals, 
     based on his votes in cases involving liability issues.
       In one case heard by his court involving an alleged breach 
     of an employment contract, Judge Southwick went out of his 
     way in a dissenting opinion to praise the doctrine of 
     employment-at-will, which allows an employer to fire an 
     employee for virtually any reason. Despite the fact that 
     neither the existence nor merits of the at-will doctrine were 
     at issue in the case, Judge Southwick wrote, ``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.''
       Dubard v. Biloxi H.M.A., 1999 Miss. App. LEXIS 468, at *16 
     (Miss. Ct. App. 1999), rev'd 778 So. 2d 113, 114 (Miss. 
     2000). The National Employment Lawyers Association has cited 
     this case in particular in explaining its opposition to Judge 
     Southwick's confirmation. According to NELA, ``[t]hat Mr. 
     Southwick would use the case as a platform to propound his 
     views, rather than as a vehicle to interpret laws is 
     problematic and suggests that he may be unable to separate 
     his own views from his judicial duty to follow the law.'' 
     Indeed, when asked about this case at his May 10 hearing, 
     Judge Southwick admitted that he had put his personal 
     ``policy'' views into a decision, but claimed to regret 
     having done so.
       Finally, we note that not all of Judge Southwick's record 
     has been provided to the Committee, including more than two 
     years' worth of unpublished decisions by the Mississippi 
     Court of Appeals in cases on which he voted but in which he 
     did not write an opinion. As the Richmond and S.B. cases 
     underscore, the opinions that a judge chooses to join, or 
     elects not to, can be just as revealing of his judicial 
     philosophy as those that he writes. Particularly given what 
     is known about Judge Southwick's record, the notion of 
     proceeding with his nomination on less than a full record 
     would be grossly irresponsible.
       With a lifetime position on what is essentially the court 
     of last resort for most Americans at stake, Judge Southwick 
     has failed to meet the heavy burden of showing that he is 
     qualified to fill it. The risks are simply too great to put 
     someone with Judge Southwick's legal views on a federal Court 
     of Appeals for life.
       In this regard, we were particularly struck by a very 
     telling moment at Judge Southwick's May 10 hearing. Senator 
     Durbin, in questioning Judge Southwick, noted the great 
     personal courage of federal Judge

[[Page 28076]]

     Frank Johnson of Alabama, whose landmark civil rights rulings 
     were so critical to advancing the legal rights of African 
     Americans in the south. Senator Durbin then asked Southwick, 
     looking back on his career in public service, to cite an 
     instance in which he had ``stepped out'' and taken an 
     unpopular view on behalf of minorities. Judge Southwick could 
     not identify one single instance in response to this 
     question, even when Senator Durbin asked it a second time.
       As more than 200 law professors wrote to the Senate 
     Judiciary Committee in July 2001, no federal judicial nominee 
     is presumptively entitled to confirmation. Because federal 
     judicial appointments are for life and significantly affect 
     the rights of all Americans, and because of the Senate's co-
     equal role with the President in the confirmation process, 
     nominees must demonstrate that they meet the appropriate 
     criteria. These include not only an ``exemplary record in the 
     law,'' but also a ``commitment to protecting the rights of 
     ordinary Americans,'' and a ``record of commitment to the 
     progress made on civil rights, women's rights, and individual 
     liberties.'' Judge Southwick has failed to meet his burden of 
     showing that he should be confirmed.
       We had hoped that after the failed nominations of Charles 
     Pickering and Michael Wallace, the President would nominate 
     someone for this lifetime judicial position in the tradition 
     of Frank Johnson, or at the least someone whose record did 
     not reflect resistance to social justice progress in this 
     country. Unfortunately, the President has not done so. We 
     therefore strongly urge the Judiciary Committee to reject 
     Leslie Southwick's confirmation to the Fifth Circuit.
           Sincerely,
                                                    Ralph G. Neas,
     President.
                                  ____

                                             West Texas Employment


                                          Lawyers Association,

                                        El Paso, TX, May 22, 2007.
     Hon. Patrick Leahy,
     Senate Judiciary Committee,
     Washington, DC.
       Dear Senator Leahy: I write on behalf of the West Texas 
     Employment Lawyers' Association. Collectively, the members of 
     our group have represented thousands of employees, workers 
     and average folk in matters ranging from employers' failures 
     to pay our clients a minimum wage for work performed, sexual 
     harassment claims, as well as age, race, disability and sex 
     discrimination claims. We routinely practice in front of the 
     Fifth Circuit Court of Appeals and we are very proud of the 
     work we perform on behalf of the hardworking men and women of 
     our nation, vindicating their right to be free from 
     discrimination.
       As an organization, we felt it necessary to go on record to 
     oppose Leslie Southwick's nomination to the Fifth Circuit. 
     Please oppose the nomination of Leslie Southwick to the Fifth 
     Circuit. As civil rights and employment discrimination 
     lawyers, it is our humble opinion that Leslie Southwick would 
     do grievous and long-term harm to ordinary workers, and 
     normal Americans whose last names are not ``Inc.'' or ``Ins. 
     Co.''
       Please, for the sake of our civil liberties and the average 
     working American, do all in your power to prevent Leslie 
     Southwick's nomination.
           Sincerely,
                                              Enrique Chavez, Jr.,
     President.
                                  ____

                                          National Gay and Lesbian


                                                   Task Force,

                                     Washington, DC, May 29, 2007.
     Senator Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Leahy and Senator Specter: On behalf of the 
     National Gay and Lesbian Task Force, Inc. a non-partisan 
     civil rights and advocacy group organizing nationwide to 
     secure lesbian, gay, bisexual, and transgender (LGBT) 
     equality, I urge you to oppose the nomination of Leslie 
     Southwick to the United States Court of Appeals for the Fifth 
     Circuit. Judge Southwick has a disturbing record on LGBT 
     rights. His statements during his confirmation hearing and 
     written responses do not allay our concerns about how he 
     would approach cases involving the rights of gay, lesbian, 
     bisexual, and transgender Americans.
       While on the Mississippi Court of Appeals, Judge Southwick 
     joined an opinion removing an eight-year-old child from the 
     custody of her mother, citing in part that the mother had a 
     lesbian home. This decision was based on a negative 
     perception about the sexual orientation of the biological 
     mother and ignored findings by the American Psychological 
     Association, along with every other credible psychological 
     and child welfare group that lesbian and gay people are 
     equally successful parents as their heterosexual 
     counterparts.
       Further, Judge Southwick was the only judge in the majority 
     to join a deeply troubling concurrence written by Judge 
     Payne. The concurrence asserts that sexual orientation is a 
     choice and an individual who makes that choice must accept 
     the negative consequences, including loss of custody. This 
     statement underscores Judge Southwick's disregard for 
     commonly accepted psychiatric and social science conclusions 
     that sexual orientation is not a choice. Regardless, it also 
     demonstrates Judge Southwick's callous disregard for the 
     rights of LGBT families.
       A nominee to the federal bench bears the burden of 
     demonstrating a commitment to rigorously enforce the 
     principles of equal protection and due process for all 
     Americans. The judicial record of Judge Southwick makes clear 
     that he cannot meet that burden. It also makes clear that the 
     individual and equal protection rights of LGBT families would 
     be in real jeopardy if he were confirmed.
       We therefore oppose his nomination and request that you 
     vote against his confirmation. It would be unconscionable for 
     this Senate to confirm any judge who has illustrated such a 
     clear anti-LGBT bias to a lifetime seat on the federal bench.
           Sincerely,
                                                     Matt Foreman,
     Executive Director.
                                  ____



                             National Council of Jewish Women,

                                       New York, NY, June 5, 2007.
     Hon. Patrick Leahy,
     Chairman, Senate Judiciary Committee,
     Washington, DC.
       Dear Chairman Leahy: On behalf of the 90,000 members and 
     supporters of the National Council of Jewish Women (NCJW), I 
     am writing to urge the Judiciary Committee to reject the 
     nomination of Judge Leslie H. Southwick to the 5th Circuit 
     Court of Appeals. Much of Judge Southwick's record remains 
     unknown because the opinions in which he concurred were 
     rarely published, but what we do know is deeply troubling. It 
     does not appear that Judge Southwick will uphold federal law, 
     including laws against discrimination on the basis of race, 
     sex, national origin, and religion.
       To the contrary. Judge Southwick joined a majority of the 
     Mississippi appeals court in ruling that a state employee's 
     dismissal for referring to a co-worker as ``a good ole 
     n****'' was unwarranted, a ruling unanimously reversed by the 
     Mississippi Supreme Court. In another case Judge Southwick 
     wrote a concurring opinion positing that a ``homosexual 
     lifestyle'' could be used to deprive a parent of custody of 
     her own child.
       Historically, the 5th Circuit Court of Appeals has served 
     as a bulwark for the protection of civil rights. Sadly in 
     recent years that record has evaporated. President Bush has 
     twice nominated candidates perceived to be hostile to civil 
     rights that fortunately were never confirmed. Judge Southwick 
     appears to follow in the footsteps of his predecessor 
     nominees in his apparent hostility to civil rights. It is 
     also disappointing that President Bush again failed to take 
     advantage of an opportunity to appoint an African American 
     lawyer to the Mississippi seat on the 5th Circuit Court.
       The Judiciary Committee's hearing of May 10, 2007, did not 
     reverse the clear impression that Judge Southwick is unable 
     to serve as an impartial judge on the 5th circuit, and much 
     of his record still remains unavailable for analysis. The 
     committee should reject his nomination and urge the President 
     to submit a consensus nominee committed to respect for 
     fundamental constitutional rights.
           Sincerely,
                                                   Phyllis Snyder,
                                                   NCJW President.

  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I am pleased the Senate will vote today on 
Judge Southwick's nomination. I hope my colleagues will join me in 
voting to confirm this dedicated public servant and courageous soldier.
  Judge Southwick has many impressive credentials. Most impressive to 
me and most revealing of his character is his military service. In 
1992, almost 20 years after graduating from law school, Judge Southwick 
interrupted his successful career as an attorney in private practice 
and obtained an age waiver to join the U.S. Army Reserves Judge 
Advocate General's Corps. Ten years later, at age 53, Judge Southwick 
volunteered to transfer to the 155th Brigade Combat Team of the 
Mississippi National Guard, a line combat unit that was deployed to 
Iraq in 2005. Judge Southwick's decision to join the Army is a model of 
self-sacrifice, and his actions helped to provide equal justice not 
only to American soldiers but also to the numerous Iraqi civilians 
whose cases he heard while he was stationed in Iraq. That is the kind 
of service this individual has provided to his country.
  Most disappointing is that some Members of the Senate have questioned 
Judge Southwick's character by stating that ``He has an inclination 
toward intolerance and insensitivity.'' That is an interesting criteria 
that we should set for the confirmation of judges.

[[Page 28077]]

  It is interesting that we are now going to have, for the first time 
in a long time, a requirement for 60 votes to move forward. As my 
colleagues might recall, a couple of years ago there was a proposal 
from some on this side of the aisle and some others that we should 
change the rules of the Senate so that only 51 votes would be necessary 
to confirm a nominee. At that time, I opposed that idea because I 
thought that it would then put us on a slippery slope to other 
requirements, other further erosion of the 60 votes upon which this 
body operates and which separates us from the House of Representatives. 
So a group of us, who were given the nickname of the ``Gang of 14,'' 
got together and agreed that we would not filibuster or require 60 
votes unless there were ``extraordinary circumstances.'' As a result of 
that, Justices Roberts, Alito, and many other judges were confirmed by 
this body.
  I think it is pretty obvious that agreement has broken down. I would 
like to remind my colleagues that not that many years ago the benefit 
of the doubt went to the President and his nominees and that elections 
have consequences. Among those consequences are the appointments of 
judges--in some respects, perhaps the most important consequence of 
elections because, as we all know, these are lifetime appointments, and 
some of us on the conservative side have viewed over the years 
legislating from the bench in certain kinds of judicial activism as 
very harmful not only to our principles and philosophy and our view of 
the role of Government and the various branches of Government but the 
effects of some of that judicial activism.
  So here we are now with a person who is clearly qualified, served in 
the military, and is now being accused of perhaps having an 
``inclination toward intolerance or insensitivity.'' I can assure my 
colleagues there are some people living in Iraq today who don't believe 
Judge Southwick has an inclination toward intolerance and 
insensitivity. In fact, he has earned their gratitude for his efforts 
in installing the fundamental effects of democracy, and that is the 
rule of law.
  I hope, Mr. President, once we get this over with, perhaps we can sit 
down again, Republicans and Democrats alike, and try to have a process 
where we could move forward with these judicial nominations. As we 
know, there are more vacancies every day. And I would even agree to 
give them a pay raise, which they seem to feel is rather important.
  This is an important decision right now, which I think is larger than 
just the future of this good and decent man. Will others who want to 
serve on the bench be motivated to serve or not serve as they watch 
this process where someone accused of an inclination toward intolerance 
and insensitivity seems to be a new criteria?
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I would like to echo the sentiments of 
Senator McCain and add my two cents' worth to this debate. In this 
regard, there will be some good news today. I anticipate that this fine 
man will have a vote on the floor of the Senate, that the cloture 
motion will pass, and we will allow an up-or-down vote and he will get 
confirmed.
  To my 2 colleagues from Mississippi: Well done. You have sent to the 
Senate an unusually well-qualified candidate by any standard you would 
like to apply to a person in terms of his humanity, his intellect, and 
his judicial demeanor. It is one of the best selections I have had the 
privilege of reviewing since I have been in the Senate.
  The unfortunate news is that we are having to go through this 
particular exercise to get 60 votes. Quite frankly, I think the 
accusations being made against Judge Southwick are unfounded and just 
political garbage, to be honest with you.
  He has received the highest qualified rating from the American Bar 
Association. Everyone who has ever served with Judge Southwick, in any 
capacity, whether it be as a judge, a lawyer, or private citizen, has 
nothing but glowing things to say about the man. And really, we are 
trying to use two legal events to cast doubt over the man. Six hundred 
cases he has sat in judgment upon, and the American Bar Association has 
reviewed all these cases, I would assume, and come to the conclusion 
that he is at their highest level in terms of judicial qualification.
  Judge Southwick has done things as a person that have really been 
beneficial to Mississippi. He has tried to bring out the best in 
Mississippi. These are the types of people you would hope to represent 
the State of Mississippi--or any other State, for that matter--in terms 
of their demeanor, their tolerance, their willingness to work together 
with all groups to move their State forward.
  Now, the 2 cases in question are just complete garbage--the idea that 
the term ``homosexual lifestyle'' was used in an opinion that he 
concurred in involving a custody case. That term, if you research it in 
the law, has been used in hundreds of different cases--over 100 cases. 
President Clinton mentioned it in 1993 when he was talking about his 
policy regarding the military. It is a term that was used in the 
Mississippi court cases that were the precedent for the case involved. 
And to say that he concurred in an opinion where the authoring judge 
used that term has somehow tainted him means you better go through the 
records and throw a bunch of judges off, Democrats and Republicans. 
That is ridiculous, completely ridiculous, and if applied in any fair 
way would just be--it would be chaos. You would have politicians, you 
would have judges, you would have people from all over the country who 
somehow, because of that term having been used in a judicial opinion, 
couldn't sit in judgment of others. That is ridiculous. Just go search 
the record of how this term has been used. To suggest that it means 
something in Judge Southwick's case but no one else's has a lot to say 
about this body, not Judge Southwick.
  Now, the other case, he was sitting in judgment of an administrative 
board that decided not to dismiss an employee who used a racial slur in 
the workplace. To suggest that by somehow giving deference to the 
administrative board, whether or not their decision was capricious and 
arbitrary--the review standard at the appellate level--he embraces this 
term or is intolerant is equally ridiculous. I have an administrative 
board in the State of Mississippi that is an expert in the area of 
employment discrimination law, hiring and firing practices. The case is 
decided at the administrative level, and it comes up to appeal, and 
every judge involved says this is a terrible word to use but, as a 
matter of law, the board's finding it was an isolated incident did not 
justify a complete dismissal was the issue in the case.
  Now, do we really want to create a situation in this country where 
the judges who want to get promoted will not render justice or apply 
the law, that they will be worried about themselves and what somebody 
may say about the context of the case? Are we going to get so that you 
cannot represent someone? What about the person who was being accused 
of the racial slur? What if you had represented them? Would we come 
here on the floor of the Senate saying: My God, you represented someone 
who said a terrible thing; therefore, you can't be a judge? I don't 
know about you, but as a lawyer, I have represented some pretty bad 
people. It was my job. And judges have to apply the law and use their 
best judgment.
  So I hope this man will get an up-or-down vote and that this garbage 
we are throwing at our nominees will stop.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, could you tell me how much time we have 
remaining on our side?
  The PRESIDING OFFICER. Thirty-three minutes 45 seconds, including 
the----
  Mr. SCHUMER. The 10 minutes, yes. And how about on the other side?
  The PRESIDING OFFICER. Twenty-seven minutes.
  Mr. SCHUMER. Mr. President, I yield myself 10 minutes.
  This is, indeed, an important debate, and I think you can look at it 
at two different levels.

[[Page 28078]]

  First, I wish to argue strongly against the confirmation of Leslie 
Southwick to the Fifth Circuit Court of Appeals. We do not assess 
judicial nominees in a vacuum. In addition to the particular record of 
the nominee, there are a number of factors that figure into a Senator's 
proper evaluation of a candidate. We may consider, among other things, 
the history behind the seat to which the candidate has been nominated; 
the ideological balance within the court to which the nominee aspires; 
the diversity of that court; the demographics of the population living 
in that court's jurisdiction; the legacy of discrimination, injustice, 
and legal controversy in that jurisdiction. In this case, the context 
and circumstances of the nomination require us to view it with 
particular scrutiny. In this case doubt must be construed not for the 
nominee, as some of my colleagues--the Senator from Arizona and the 
Senator from South Carolina--have argued, but, rather, against the 
nominee.
  The Fifth Circuit is perhaps the least balanced and least diverse in 
the country. The circuit has deservedly earned a reputation as being 
among the most conservative in the Nation. It has 15 judges, 11 filled 
by Republican Presidents. It has a large African-American population. 
There is only one African-American judge serving on it. The circuit has 
three seats traditionally reserved for Mississippians. That honor has 
never gone to an African American, even though Mississippi's population 
is more than one-third African American. Of course, the Fifth Circuit 
services areas that still suffer the scars and effects of decades of 
deep racial inequality and discrimination.
  So you have to put things in context. We have had two other nominees 
who were extremely unsuitable candidates: Judge Pickering, whom this 
body rejected, and Michael Wallace, whom many, when you speak to them 
in Mississippi and in the African-American community there, said an 
African American might not get a fair trial in Michael Wallace's court. 
But they were nominated. The exact same reasoning could have been used 
for them. Those were the two previous nominees. We have to evaluate 
Judge Southwick against this backdrop.
  When we do so, we cannot have confidence that he is a moderate jurist 
who will apply the law evenhandedly. Most disturbingly, Judge 
Southwick's judicial record provides no comfort that he understands or 
can wisely adjudicate issues relating to race, discrimination, and 
equal treatment. In this circuit above all, that should be a criterion. 
Whether you are from Mississippi or Arizona or South Carolina or New 
York, we should all care about that.
  Let's go over some of the record. There is the Richmond case. The 
majority opinion in the Richmond case reflects an astonishingly bad 
decision. In that case, Judge Southwick joined a 5-to-4 ruling that 
essentially ratified the bizarre finding of a hearing officer who 
reinstated a State worker who had insulted a fellow worker by using the 
worst racial slur, the ``n'' word. To join that wrongheaded decision 
was to ignore history and common sense and common decency, to find a 
basis for excusing the most deeply offensive racial slur in the 
language. As the dissenters in Richmond pointed out, and there were 
four of them, the term ``is and always has 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 their use establishes the intent to offend.''
  Of course, the Mississippi Supreme Court, the highest court in 
Mississippi, unanimously reversed. The Richmond case cannot be 
dismissed, as some would like, as just one case that Judge Southwick 
merely joined. He could have joined the very vocal dissent. He could 
have written a separate concurrence. He did neither. It is fair and 
proper to ascribe to Judge Southwick every word of the Richmond 
majority opinion--and the case is a touchstone, the case is a 
benchmark. It is a predictor and it is all the more important because 
there is little or nothing in the record to offset the impression it 
gives about Judge Southwick's jurisprudence.
  Judge Southwick, at his hearing, said some of the hearing officer's 
analysis ``does not now seem convincing to me,'' even though he 
endorsed it only 9 years ago. This mild attempt at backtracking at his 
confirmation hearing does not provide comfort. In fact, it smacks of a 
nominee trying in some small way to please Senators who will decide his 
fate.
  Beyond this defining case, moreover, Judge Southwick has shown over 
more than a decade of adjudicating cases that we should be concerned 
about his legal philosophy in so many areas: consumer rights, workers' 
rights, race discrimination in jury selection. He has shown a bias. I 
am not going to get into those cases, but, again, I would say there is 
a special onus on us all here.
  Most of my colleagues--some on this side of the aisle--have said: 
Well, he issued thousands of opinions and only made one mistake. First, 
I am not sure that is true. When you look at his opinions, there are 
more mistakes than that. But let's even say he made this one mistake. 
Normally that would be a good argument. We all make mistakes. None of 
us before God is flawless, is perfect. Of course we are human beings. 
But certain mistakes are not forgivable. They may be forgivable of a 
person as a man or a woman, but not forgivable when you are elevating 
someone to the Fifth Circuit.
  We have had a poison in America since the inception of this country. 
This is a great country. I am a patriot. I love this country dearly. It 
is in my bones. But the poison in this country, the thing that could do 
us in, is race and racism. Alexis de Tocqueville, the great French 
philosopher, came here in the 1830s. He made amazing predictions about 
this country. We were a tiny nation of farmers, not close to the power 
of Britain or France or Russia, the great European nations. De 
Tocqueville comes from France and says this country, America--this is 
in the 1830s--this country is going to become the greatest country in 
the world. He was right. Then he said one thing could do us in--race, 
racism and its poison. He was right again.
  When it comes to the area of race and racism, we have to bend over 
backwards. The African-American community in Mississippi, in the 
country, is strongly against the Southwick nomination. They know this 
discrimination, this poison of America, better than anybody else. They 
know, even in 2007, the little winks and gestures that indicate a whole 
different subplot. When you condone using the ``n'' word, you are doing 
just that. Unfortunately, Judge Southwick--he may be a good man and I 
certainly don't think he is a racist, but his words have to be seen in 
context. Like it or not, when he is nominated to the Fifth Circuit he 
is carrying 200-some-odd years of bigotry that has existed in this 
country, and particularly in this circuit, on his back. That is the 
issue here. This is not just any mistake; this is not just any flaw. 
This comes in a whole subcontext.
  Then I heard yesterday that Judge Southwick has not met with the one 
African Member of the Mississippi delegation, Bennie Thompson. He has 
not met with, I believe it was called the Magnolia Bar Society, the 
African-American bar society in Mississippi. Should not Judge 
Southwick, after these allegations, have gone out of his way? He called 
yesterday, after Bennie Thompson, Congressman Thompson, presented this 
to us. Shouldn't he have been camped out at Bennie Thompson's door to 
try to explain what he did? It is the same kind of attitude. It is the 
same kind of subtext that, frankly, unless you are African American, 
you don't see.
  John McCain is right. Elections have consequences. I do not expect 
our President to nominate to the Fifth Circuit somebody who has my 
views or the views of other Members of this side. Elections do have 
consequences. But on the issue of race, the poison of America, where 
the Fifth Circuit has been a cauldron, I do expect the President to 
nominate someone who is above reproach. Because we are not just judging 
a man or a woman as he or she

[[Page 28079]]

treads on this Earth. We are judging somebody to go to the second 
highest court in the land. There must be--there must be--thousands of 
jurists of every race who meet the President's views but do not have 
this unfortunate, serious, and irremovable blemish upon them.
  This one to me is not an ordinary situation. It is not one mistake 
out of 7,000 opinions. It is not judging whether Judge Southwick is a 
good man. Let's assume he is. It goes far deeper than that. It is not 
saying, as so many of my colleagues have said: We may have a Democratic 
President and we need, next time out, to make sure we come together on 
judges. I wish to do that. You know, when you vote for 90-some-odd 
percent of the President's nominees, almost every one of whom you 
disagree with philosophically, you are doing that. I have done that. 
Most Members on this side have done that. But that does not forgive 
this--again, in the context, not of somebody as a person but in the 
context of something to be elevated to the Fifth Circuit.
  In conclusion, we have to make every effort to bend over backwards on 
the issue of race and racism in the Fifth Circuit and in the other 
circuits as well. We have not done that here. We are sort of casting it 
aside, finding an excuse, pushing it under the rug. Again, I do not 
believe Judge Southwick is a racist, but I do believe when it comes to 
the issue of race, one on the Fifth Circuit must be exemplary. This 
case shows he is not. He has failed that standard. I urge my 
colleagues, every one of them on both sides of the aisle, to look into 
their hearts when they cast this important vote.
  Mr. President, I ask unanimous consent that several letters regarding 
this Nomination be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      May 8, 2007.
     Re Leslie Southwick

     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senator Leahy and Senator Specter: We are writing on 
     behalf of People for the American Way and the Human Rights 
     Campaign and our combined grassroots force of more than 
     1,700,000 members and other supporters nationwide to express 
     our serious concerns regarding the nomination of Mississippi 
     lawyer and former state court judge Leslie Southwick to the 
     United States Court of Appeals for the Fifth Circuit. As you 
     know, Judge Southwick has been nominated by President Bush to 
     fill a seat on the Fifth Circuit that the President has 
     previously attempted to fill with Charles Pickering and then 
     with Michael Wallace, both of whose nominations were met with 
     substantial opposition, in large measure because of their 
     disturbing records on civil rights. Now, with Judge 
     Southwick, President Bush once again appears to have chosen a 
     nominee for this seat who has a problematic record on civil 
     rights, as further discussed below. And once again the 
     President has passed over qualified African Americans in a 
     state with a significant African American population that has 
     never had an African American judge on the Fifth Circuit.
       At the outset, we are constrained to note that there are 
     significant concerns regarding the insufficient time provided 
     to the Judiciary Committee to consider Judge Southwick's 
     record in the careful manner required by the Senate's 
     constitutional responsibilities in the confirmation process, 
     as well as concerns raised by the fact that Judge Southwick's 
     complete record does not appear to have been provided to the 
     Committee. The confirmation hearing for Judge Southwick was 
     scheduled with only a week's notice to the Committee, 
     providing insufficient preparation time for the consideration 
     of a controversial appellate court nominee. In addition, 
     there has not been sufficient time since Judge Southwick 
     submitted his responses to the Committee's questionnaire, in 
     late February, for his entire judicial record to be reviewed; 
     indeed, it appears that some of his record has not yet even 
     been provided to the Committee.
       Leslie Southwick served as a judge on the Mississippi Court 
     of Appeals from 1995-2006. The number of cases in which he 
     participated during that time is voluminous, well in excess 
     of 7,000 by his own estimation. Moreover, according to Judge 
     Southwick, many of the court's decisions during that time 
     were not published at all (including all of the court's 
     rulings--some 600 cases a year according to Southwick--issued 
     over a period of approximately two and a half years during 
     his tenure). While Judge Southwick in late February provided 
     to the Committee a compact disc containing thousands of pages 
     of his own unpublished opinions, to the best of our knowledge 
     he has not provided copies of the court's unpublished 
     opinions as to which he voted but that he did not write. As 
     the cases discussed below underscore, it is critical that the 
     Committee examine those rulings as well, for the opinions 
     that a judge chooses to join, or elects not to, can be just 
     as revealing of his judicial philosophy as those that he 
     writes.
       In addition, and to our knowledge, the Committee also has 
     not been provided with Department of Justice records relevant 
     to Southwick's tenure as a Deputy Assistant Attorney General 
     during the administration of the first President Bush. These 
     records would shed additional light on Southwick's legal 
     philosophy and views, particularly on federal law issues that 
     simply did not come before him while he served on the 
     Mississippi Court of Appeals but that likely would if he were 
     confirmed to a federal Court of Appeals. It is axiomatic that 
     the Committee should not consider any judicial nominee 
     without the nominee's full record or adequate time in which 
     to review it.
       Apart from these significant procedural issues, a 
     preliminary review of Judge Southwick's record raises serious 
     concerns about his record on civil rights. As an intermediate 
     state appellate court, the Mississippi Court of Appeals hears 
     appeals in state law criminal cases and typical state law 
     civil cases such as contract disputes, tort claims, workers 
     compensation matters, trusts and estates matters, and the 
     like. It does not routinely consider the types of federal 
     constitutional and civil rights matters that would shed a 
     great deal of light on a judge's legal philosophy concerning 
     these critical issues. Nonetheless, Judge Southwick's 
     positions in two cases before that court during his tenure 
     raising matters of individual rights are highly disturbing, 
     and strongly suggest that Southwick may lack the commitment 
     to social justice progress to which Americans are entitled 
     from those seeking a lifetime appointment to the federal 
     bench. We discuss each of these cases below.
       Richmond v. Mississippi Department of Human Services, 1998 
     Miss. App. LEXIS 637 (Miss. Ct. App. 1998), reversed, 745 So. 
     2d 254 (Miss. 1999)
       In Richmond, 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 nigger'' at an employment-
     related conference. Richmond worked for the Mississippi 
     Department of Human Services (``DHS''), which terminated her 
     employment after other employees raised concerns about her 
     use of the racial slur. The ruling that Southwick joined was 
     unanimously reversed by the Supreme Court of Mississippi. The 
     facts are as follows.
       After she was fired, Richmond appealed her termination to 
     the state Employee Appeals Board (``EAB''), which ordered her 
     reinstatement. The hearing officer opined that Richmond's use 
     of the racial slur ``was in effect calling the individual a 
     `teachers pet'.'' 1998 Miss. App. LEXIS 637, at *19. He 
     considered the word ``nigger'' only ``somewhat derogatory,'' 
     felt that DHS had ``overreacted,'' and was concerned that 
     other employees might seek relief if they were called ``a 
     honkie or a good old boy or Uncle Tom or chubby or fat or 
     slim.'' Id. at *22-23.
       The opinion that Southwick joined upheld the EAB's 
     reinstatement of Richmond, essentially ratifying the 
     astonishing findings and conclusions of the hearing officer. 
     Moreover, the opinion that Southwick joined accepted without 
     any skepticism Richmond's testimony that her use of 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.'' Id. at *9-
     10 (emphasis added).
       There was a strong dissent by two judges who were obviously 
     appalled by the hearing officer's findings and opinion. 
     Unlike the majority, they openly criticized the hearing 
     examiner's findings and also criticized the majority for 
     presenting a ``sanitized version of [those] findings.'' Id. 
     at *29. According to the dissenters,
       The hearing officer's ruling that calling [the co-worker] a 
     `good ole nigger' was equivalent to calling her `teacher's 
     pet' strains credulity. . . . 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.
       Id. at *26.
       The dissenters would have held that the EAB's actions were 
     not supported by substantial evidence, and would have upheld 
     the decision by DHS to fire Richmond. Another judge wrote a 
     separate dissent, joined by two other judges, in which he 
     would have remanded the case to the EAB so that some penalty 
     could be imposed on Richmond, or detailed findings made as to 
     why no penalty was appropriate.
       DHS appealed the ruling of Southwick's court to the 
     Mississippi Supreme Court,

[[Page 28080]]

     which unanimously reversed. The Supreme Court majority 
     ordered that the case be sent back to the EAB to impose a 
     penalty other than termination or to make detailed findings 
     as to why no penalty should be imposed. Some of the justices 
     on the court would have gone even further and reinstated the 
     decision by DHS to fire Richmond. But all of the Supreme 
     Court justices rejected the view of the Court of Appeals 
     majority (which included Southwick) that the EAB had not 
     erred in ordering Richmond's reinstatement.
       S.B. v L.W., 793 So. 2d 656 (Miss. Ct. App. 2001).
       In this case, Judge Southwick joined a decision by the 
     Mississippi Court of Appeals, upholding--over a strong 
     dissent--a chancellor's ruling taking an eight-year-old girl 
     away from her bisexual mother and awarding custody of the 
     child to her father (who had never married her mother). The 
     mother was living at the time with another woman, and in 
     awarding custody to the father, the chancellor was plainly 
     influenced by the mother's sexual orientation and his obvious 
     concern about having the girl continue to live in what he 
     called ``a lesbian home.'' Judge Southwick not only joined 
     the majority opinion upholding the chancellor's ruling, but 
     alone among all the other judges in the majority, he joined a 
     concurrence by Judge Payne that was not only gratuitous, but 
     gratuitously anti-gay.
       In taking the girl away from her mother (with whom she 
     lived), the chancellor cited a number of factors that he 
     claimed weighed in favor of the father, but it is clear that 
     he was heavily influenced by the mother's sexual orientation. 
     For example, the chancellor stated that the factor of 
     ``[s]tability of the home environment'' weighed in favor of 
     the father, because ``he is in a heterosexual environment. 
     Has a home there that is an average American home.'' 793 So. 
     2d at 666. Meanwhile, the chancellor said, ``[t]o place the 
     child with [the mother], the child would be reared in a 
     lesbian home, which is not the common home of today. To place 
     a child with [the father], the child would be reared in a 
     home which is considered more common today.'' Id.
       The mother appealed to the Court of Appeals which, as noted 
     above, upheld the chancellor's ruling taking her daughter 
     away from her. The majority opinion, which Southwick joined, 
     held that the chancellor had not erred in taking the mother's 
     sexual orientation into consideration as what it viewed as 
     one factor in his ruling. In addition to the disturbing 
     substance of the majority's ruling, its language is also 
     troubling, and refers repeatedly to what it calls the 
     mother's ``homosexual lifestyle'' and her ``lesbian 
     lifestyle.''
       Not only did Southwick sign on to the majority opinion, but 
     he also made an affirmative decision to join a concurrence by 
     Judge Payne that was gratuitously anti-gay--and was the only 
     other judge in the majority to do so. The concurrence appears 
     to have been written for the sole purpose of underscoring and 
     defending Mississippi's hostility toward gay people and what 
     it calls ``the practice of homosexuality'' (id. at 662), in 
     response to the position of the dissenters (see below) that 
     the chancellor had erred. (The word gay is not used; the 
     concurrence refers repeatedly to ``homosexuals'' and 
     ``homosexual persons.'') The concurrence begins by stating 
     that the Mississippi legislature has ``made clear its public 
     policy position relating to particular rights of homosexuals 
     in domestic relations settings.'' Id. at 662. It then 
     proceeds to note that Mississippi law prohibits same-sex 
     couples from adopting children--although this law had nothing 
     to do with the case, since the mother was the birth mother--
     and also notes that state law makes `` `the detestable and 
     abominable crime against nature' ''--which it says includes 
     ``homosexual acts''--a ten-year felony. Id.
       Finally, the concurrence takes a huge and troubling states' 
     rights turn, claiming that ``[u]nder the principles of 
     Federalism, each state is permitted to set forth its own 
     public policy guidelines through legislative enactments and 
     through judicial renderings. Our State has spoken on its 
     position regarding rights of homosexuals in domestic 
     situations.'' Id. at 664. In other words, according to the 
     separate concurrence that Southwick chose to join, federalism 
     gives Mississippi the right to treat gay people as second-
     class citizens and criminals. The views expressed in this 
     concurrence strongly suggest that Judge Southwick is hostile 
     to the notion that gay men and lesbians are entitled to equal 
     treatment under the law.
       Two judges dissented, and in particular noted that there 
     had been no finding that there was any conduct harmful to the 
     child, and that ``it is the modern trend across the United 
     States of America to reject legal rules that deny homosexual 
     parents the fundamental constitutional right to parent a 
     child.'' Id. at 668.
       As more than 200 law professors wrote to the Senate 
     Judiciary Committee in July 2001, no federal judicial nominee 
     is presumptively entitled to confirmation. Because federal 
     judicial appointments are for life and significantly affect 
     the rights of all Americans, and because of the Senate's co-
     equal role with the President in the confirmation process, 
     nominees must demonstrate that they meet the appropriate 
     criteria. These include not only an ``exemplary record in the 
     law,'' but also a ``commitment to protecting the rights of 
     ordinary Americans,'' and a ``record of commitment to the 
     progress made on civil rights, women's rights, and individual 
     liberties.''
       The burden is on Judge Southwick to demonstrate that he 
     satisfies these important criteria for confirmation. In 
     addition to addressing the serious concerns raised by the 
     matters discussed herein and those that have been raised by 
     others, Judge Southwick must also make his full record 
     available, and the Committee must have a reasonable 
     opportunity to examine it. Because the Supreme Court hears so 
     few cases, the Courts of Appeals really are the courts of 
     last resort in most cases and for most Americans. It is 
     therefore imperative that the Committee not engage in a rush 
     to judgment over anyone seeking a lifetime seat on a federal 
     appellate court, and that it insist upon being provided with 
     the nominee's complete legal record.
       It is critical that the Committee closely scrutinize Judge 
     Southwick's full record and his jurisprudential views and 
     legal philosophy, particularly with respect to matters 
     critical to individual rights and freedoms. Until the 
     Committee has the opportunity to do that, and unless the 
     significant questions raised to date by Judge Southwick's 
     record are resolved satisfactorily, the Committee should not 
     proceed with consideration of Judge Southwick's nomination.
           Sincerely,
     Joe Solmonese,
       President, Human Rights Campaign.
     Ralph G. Neas,
       President, People For the American Way.
                                  ____

                                                      Magnolia Bar


                                            Association, Inc.,

                               Jackson, Mississippi, May 30, 2007.

     Re Nomination of Leslie Southwick

     Hon. Patrick Leahy,
     Chairman, United States Senate, Committee on the Judiciary, 
         U.S. Senate, Washington, DC.
       Dear Senator Leahy: The Magnolia Bar Association, Inc. 
     opposes the nomination of Leslie Southwick to the United 
     States Court of Appeals for the Fifth Circuit.
       Founded in 1955, the Magnolia Bar was formed as all 
     organization of African-American lawyers in Mississippi at a 
     time when the Mississippi Bar was only open to white 
     attorneys. The Magnolia Bar, an affiliate of the National Bar 
     Association, is now a biracial organization whose membership 
     is committed to the same ideals of racial equality that drove 
     our founders to form the Magnolia Bar in the first place.
       A federal judgeship is a lifetime position. Any time there 
     is an opening, there are a number of people who could be 
     considered, and no one is necessarily entitled to such an 
     appointment. While the President has a right to nominate, the 
     Senate and its Judiciary Committee must insure that the 
     nominations do not form a pattern that is racially 
     discriminatory in purpose or effect. President Bush has 
     demonstrated an absolute disdain for appointing African-
     Americans to the federal judiciary; particularly within the 
     states representing the Fifth Circuit. Of his seven 
     nominations to the Fifth Circuit Court of Appeals and his 32 
     nominations to the district courts, not one nominee is an 
     African-American. This is particularly painful as African-
     Americans comprise 37% of the population of Mississippi 
     according to the most recent census. This is the highest of 
     the fifty states. Louisiana is the second highest while Texas 
     also has a high African-American population percentage. 
     Confirmation should focus not simply on the nominee, but on 
     the impact the person's appointment will have on the federal 
     judiciary and the interpretation of the law.
       Leslie Southwick's nomination continues a stark pattern of 
     racial discrimination and racial exclusion in appointments by 
     President Bush to the Fifth Circuit and to the federal 
     judiciary from Mississippi. If the Senate Judiciary Committee 
     approves this nomination, it will perpetuate this pattern of 
     exclusion and will, in our view, bear equal responsibility 
     for it. Moreover, Judge Southwick's record as a state court 
     of appeals judge in Mississippi suggests that he is not the 
     right person for the Fifth Circuit Court of Appeals at this 
     time in our history, and that his presence there could lead 
     to an improperly narrow interpretation of the constitution 
     and the civil rights laws. There are many others from 
     Mississippi who would make good federal judges, some of whom 
     are African-American. We ask that you not approve this 
     nomination, but instead allow President Bush to reconsider 
     and perhaps nominate someone who will add to the Fifth 
     Circuit's stature, diversity, and sensitivity to the need to 
     enforce fully the civil rights laws.
       Despite an ever-growing pool of highly qualified candidates 
     from which to choose, all seventeen Mississippi nominees for 
     federal judgeships the past twenty-two years have been white. 
     The only appointment of an African-American federal judge in 
     the history of Mississippi, the twentieth state to join the 
     union, was when Judge Henry Wingate was appointed by 
     President Reagan to the district court in 1985. Of the 
     sixteen active and senior judges from Mississippi on

[[Page 28081]]

     the federal district courts and court of appeals, only one is 
     African-American. Of the nineteen active and senior judges on 
     the Fifth Circuit, only one is African-American--Carl Stewart 
     of Louisiana, who was appointed by President Clinton. 
     Incidentally, Judge Stewart is only the second African-
     American to have been appointed to the Fifth Circuit since 
     the court was created by the Judiciary Act of 1869.
       Having an appreciation of Mississippi's long history of 
     racial apartheid, disenfranchisement, interposition and 
     massive resistance, it is scandalous that President Bush has 
     not seen fit to nominate not one African-American from our 
     state to the federal judiciary.
       Fortunately, the Senate Judiciary Committee has not 
     ratified all of these nominees. It did not approve the 
     earlier nominations of Charles Pickering and Mike Wallace to 
     this seat. Yet, President Bush continues his pattern of 
     racial exclusion by submitting only white people for these 
     appointments, and submitting those who have not shown a 
     sufficient appreciation of the need for racial progress in 
     Mississippi. It is vitally important for the Senate Judiciary 
     Committee to stand firm and not ratify President Bush's 
     brazen disregard of the need to integrate the federal 
     judiciary and to nominate those who have demonstrated they 
     will fully enforce the civil rights laws. If President Bush 
     is unwilling to help create a racially integrated federal 
     judiciary that is his prerogative. The Senate, however, 
     should not be an accomplice to this unjustifiable behavior. 
     It should keep the seats open until he is willing to do so or 
     until we have a new President who will have a fresh 
     opportunity to do so.
       Several organizations have already expressed concern about 
     the decisions of Judge Southwick and whether he will fairly 
     and properly interpret the law with respect to the civil 
     rights of all. We share those concerns. Particularly 
     troubling is the decision Judge Southwick joined in the case 
     of Richmond v. Mississippi Department of Human Services. The 
     Mississippi Court of Appeals does not review many cases 
     involving racial issues in employment. This is not a 
     situation where this decision is an outlier in what otherwise 
     is a progressive record on issues of race in the workplace. 
     Judge Southwick and his colleagues in the 5-4 majority 
     basically held that the Mississippi Department of Human 
     Services--an agency of the State of Mississippi--could not 
     discipline this worker who called a co-worker a ``good ole 
     nigger.'' This decision was the subject of publicity in 
     Mississippi, Clarion Ledger, August 5, 1998, and seemed to 
     send a message that the Court of Appeals majority did not 
     believe state officials should have the power to eliminate 
     this sort of behavior from the workplace.
       In written questions by Senator Durbin, Judge Southwick was 
     asked why he believed that the hearing officer was not acting 
     arbitrarily and capriciously when he (the hearing officer) 
     concluded that the use of the word ``nigger'' was similar to 
     the terms ``good old boy or Uncle Tom or chubby or fat or 
     slim.'' Judge Southwick responded by saying that ``[i]t was 
     the EAB's [Employee Appeals Board] decision, though, not that 
     of the hearing officer, that was subject to our analysis . . 
     .'' But that statement is misleading. The Richmond majority 
     opinion, which Judge Southwick joined, states: ``The hearing 
     officer's findings, subsequently adopted by the full Board, 
     address two separate aspects of the matter under 
     consideration.'' 1998 Miss. App. LEXIS 637 *4. The opinion 
     adds: ``In order to reverse the EAB, we must determine that 
     there was not substantial evidence in the record to support 
     the findings made by the hearing officer and ratified by the 
     full board.'' Id. *7. As explained by the dissent of Judge 
     King (a distinguished African-American from Mississippi who 
     is now Chief Judge of the Mississippi Court of Appeals having 
     been appointed as Chief by the Chief Justice of the 
     Mississippi Supreme Court and who would make an excellent 
     federal appellate judge): ``Because the EAB made no findings 
     of its own, we can only conclude that it incorporated by 
     reference and adopted the findings and order of the hearing 
     officer.'' Id. * 19. As Judge King later said: ``The majority 
     opinion is a scholarly, but sanitized version of the hearing 
     officer's findings and is subject to the same infirmities 
     found in that opinion.'' Id. *28-29.
       Moreover, we agree with Judge King, that one can ``[s]earch 
     high and low, [and] you will not find any non-offensive 
     definition for [the] term [nigger], and it ``is so inherently 
     offensive that it is not altered by the use of modifiers, 
     such as `good ole.'' Id. at 26-27 Having used the term, which 
     has always been offensive, within a 60% black division of a 
     state agency with more than 50% black employees demonstrated 
     a gross lack of judgment that the agency should have 
     dismissed the employee. As Justice Fred Banks, the African-
     American member of the Supreme Court at the time, explained 
     in his concurring opinion:
       [I]t is clear [the Department of Human Services] had an 
     interest in terminating Bonnie Richmond because not to have 
     taken some sort of action regarding the comment made by her, 
     could possibly have subjected the agency to a claim of 
     racially hostile environment claim under federal law, and 
     therefore retaining Bonnie Richmond could constitute 
     negligence. Richmond v. Mississippi Dept. of Human Services, 
     745 So.2d 254, 260 (Miss. 1999)(Banks, J., concurring)(joined 
     by Sullivan, P.J., and Smith, J.)
       We are also troubled by the other decisions and positions 
     cited in the various questions propounded by members of the 
     Judiciary Committee and in the statements issued by other 
     organizations expressing concern over this nomination. We 
     question whether Judge Southwick will properly enforce the 
     law when it comes to the rights of those who are unpopular 
     and who are marginalized by the political process. The Fifth 
     Circuit needs a moderating influence at this point in 
     history, but it appears this appointment will have the 
     opposite effect.
       As Senator Durbin pointed out at the hearing on Judge 
     Southwick's nomination, the Fifth Circuit Court of Appeals 
     was once a collection of several heroic judges who 
     steadfastly enforced the civil rights of African-Americans 
     and other dispossessed groups even though many white people 
     in the South were quite hostile to the notion of equal rights 
     under the law. Unfortunately, the present-day Fifth Circuit 
     has often retreated from that legacy by applying a narrow and 
     overly technical interpretation of the constitution and the 
     civil rights laws. Moreover, at a time when the bars of 
     Mississippi, Louisiana, and Texas have become racially 
     integrated, and when many governmental bodies in those states 
     have achieved significant racial diversity, the Fifth Circuit 
     presently stands as an almost all-white judicial body in the 
     heart of the Deep South. This is a sad legacy and the Senate 
     Judiciary Committee should do everything it can to end that 
     legacy rather than perpetuate it.
       Thank you for your consideration.
           Sincerely,

                                            Carlton W. Reeves,

                                                        President,
     Magnolia Bar Association, Inc.
                                  ____

                                               National Employment


                                          Lawyers Association,

                          San Francisco, California, May 30, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary,
     Washington, DC.
       Dear Senators Leahy and Specter: I am writing to you as 
     President of the National Employment Lawyers Association 
     (NELA) to express our strong opposition to the nomination of 
     Leslie Southwick to the Fifth Circuit Court of Appeals. After 
     reviewing Mr. Southwick's background and legal experience, we 
     believe he is not qualified to be appointed to the federal 
     bench.
       Mr. Southwick has been nominated to the same Fifth Circuit 
     seat that has been steeped in controversy: President Bush 
     recess appointed Charles Pickering to the seat in January 
     2004 and nominated Michael Wallace to the seat in 2006. NELA 
     strongly opposed both of those nominees and takes a similar 
     position on Mr. Southwick's nomination.
       Like Pickering and Wallace, Mr. Southwick has espoused 
     extreme views reflecting a lack of commitment to equality and 
     justice in the workplace. For example, Mr. Southwick joined a 
     troubling 5-4 decision from the Mississippi Court of Appeals 
     that excused the use of a racial slur by a white state 
     employee. In Richmond v. Mississippi Dep't of Human Services, 
     Bonnie Richmond, an employee with the Mississippi Department 
     of Human Services (DHS), was terminated when she referred to 
     an African-American co-worker as a ``good ole n*****'' at a 
     meeting that included agency executives. Richmond appealed 
     her termination to the Mississippi Employee Appeals Board 
     (EAB). A hearing was conducted by one member of the EAB who 
     had been designated to act as hearing officer.
       Among other things, the hearing officer concluded that the 
     ``DHS overreacted'' to Richmond's comments, because the term 
     ``was not a racial slur, but instead was equivalent to 
     calling [the African American employee] `teacher's pet.''' 
     The hearing officer stated, ``I understand that the term 
     `n*****' is somewhat derogatory, but the term has not been 
     used in recent years in the conversation that it was used in 
     my youth, and at that point--at that time it was a derogatory 
     remark . . . I think that in this context, I just don't find 
     it was racial discrimination.''
       The majority, which included Mr. Southwick, affirmed the 
     EAB hearing officer's decision without reservation. They 
     found that, taken in context, the slur was an insufficient 
     ground to terminate Richmond's employment in part because it 
     ``was not motivated out of racial hatred or racial animosity 
     directed toward a particular co-worker or towards blacks in 
     general.'' The dissent, rightly disturbed by the majority's 
     failure to acknowledge the inherent offensiveness of the 
     epithet, stated that ``the hearing officer and the majority 
     opinion seem to suggest that absent evidence of a near race 
     riot, the remark is too inconsequential to serve as a basis 
     of dismissal.''
       When Judiciary Committee member Senator Russ Feingold, at 
     Mr. Southwick's hearing earlier this month, characterized the 
     argument relied upon by Mr. Southwick in the

[[Page 28082]]

     case as ``a pretty shocking piece of analysis,'' Mr. 
     Southwick even admitted that the reasoning ``does not now 
     seem convincing to me.'' However, his backpedaling comes too 
     late and fails to allay NELA's concerns that Mr. Southwick, 
     if confirmed to the Fifth Circuit, will turn a blind eye to 
     discrimination in the workplace.
       Indeed, NELA is troubled by Mr. Southwick's views on other 
     workplace issues, particularly his zealous support for the 
     employment-at-will doctrine, a doctrine which provides that 
     employers can fire employees for virtually any reason. In 
     Dubard v. Biloxi, H.M.A., the court addressed the issue, 
     among others, of whether there was sufficient evidence to 
     show that the defendant did not breach the plaintiff's 
     employment contract or that the defendant did not wrongfully 
     discharge the plaintiff. In a dissenting opinion that focused 
     less on the merits of the case and more on the virtues of the 
     employment-at-will doctrine, Mr. Southwick went to great 
     lengths to justify a legal theory that has been the subject 
     of intense legal, judicial and academic controversy. He 
     wrote: ``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 of employment at will.''
       Mr. Southwick casually, and without any supporting 
     citations, equated the doctrine of employment at will with 
     democracy. In fact, it is its polar opposite. That doctrine 
     is often used to justify employers' decisions to discharge 
     employees who have engaged in pro-union activities or in 
     other conduct protected by anti-discrimination, minimum wage 
     and overtime, occupational safety and health, family and 
     medical leave, whistleblower protection, and other federal 
     and state statutes. An employer can cause devastating 
     financial and emotional harm to an employee; an individual 
     employee rarely has that same power. Mr. Southwick's 
     endorsement of that doctrine calls into question his 
     willingness to vigorously enforce federal legislation that 
     imposes restrictions on an employers ability to fire 
     employees without a good reason or, for that matter, without 
     any reason.
       Based on his demonstrated insensitivity to race issues, 
     combined with his apparent inability to divorce his views 
     from his judicial obligation to be fair and independent, NELA 
     believes that Mr. Southwick would be in the mold of previous 
     nominees like Charles Pickering and Michael Wallace who had 
     never been friendly to employee rights. As such, NELA is 
     strongly opposed to Mr. Southwick's nomination to the Fifth 
     Circuit Court of Appeals and believes he should not be 
     confirmed by the Senate.
       Thank you for your consideration. If you have any 
     questions, please feel free to contact NELA Program Director 
     Marissa Tirona.
           Sincerely,

                                            Kathleen L. Bogas,

                                                        President,
                          National Employment Lawyers Association.

  Mr. WARNER. Mr. President, I rise today in support of the nomination 
of Judge Leslie Southwick to serve on the U.S. Circuit Court of Appeals 
for the Fifth Circuit.
  Article II, section 2 of the U.S. Constitution explicitly provides 
the responsibilities of the executive branch of Government and the 
Senate with respect to judicial nominations. Article II, section 2 of 
the Constitution reads, in part, that the President ``shall nominate, 
and by and with the Advice and Consent of the Senate, shall appoint . . 
. Judges of the Supreme Court and all other Officers of the United 
States . . . .''
  Thus, the Constitution provides the President of the United States 
with the responsibility of nominating individuals to serve on our 
Federal bench.
  The Constitution provides the Senate with the responsibility of 
providing advice to the President on those nominations and with the 
responsibility of providing or withholding consent on those 
nominations.
  In this respect, article II, section 2 of our Constitution places our 
Federal judiciary--a coequal branch of Government--in a unique posture 
with respect to the other two co-equal branches of our Federal 
Government. Unlike the executive branch and unlike the Congress, the 
Constitution places the composition and continuity of our Federal 
judiciary entirely within the coordinated exercise of responsibilities 
of the other two branches of Government. Only if the President and the 
Senate fairly, objectively, and in a timely fashion exercise these 
respective constitutional powers can the judicial branch of Government 
be composed and maintained so that our courts can function and serve 
the American people.
  For this reason, in my view, a Senator has no higher duty than his or 
her constitutional responsibilities under article II, section 2--the 
advice and consent clause.
  During the course of my 28 years in the Senate, I have always tried 
to fairly and objectively review a judicial nominee's credentials prior 
to deciding whether I will vote to provide consent on a nomination. I 
look at a wide range of factors, primarily character, professional 
career, experience, integrity, and temperament for lifetime service on 
our courts. While I certainly recognize political considerations, it is 
my practice not to be bound by them.
  Having reviewed Judge Southwick's nomination, in my view, he is 
eminently qualified to serve on the Federal bench. I note that the 
American Bar Association, often cited as the ``gold standard'' of 
review of judicial nominees, agrees with me as it has given Judge 
Southwick its highest rating of ``well-qualified.''
  Judge Southwick's credentials are well-known but worth repeating. He 
received his bachelor's degree, cum laude, from Rice University and 
then proceeded to law school at the University of Texas.
  Subsequent to his law school graduation, he served as a law clerk for 
two jurists: a judge on the U.S. Court of Appeals for the Fifth 
Circuit--the court for which he now has been nominated--and for a judge 
on the Texas Court of Criminal Appeals.
  Upon completing his clerkships, Mr. Southwick entered private 
practice with a law firm in Mississippi, starting as an associate but 
rising to the level of partner 6 years later. After 12 years of private 
practice, he joined the U.S. Department of Justice in the George H. W. 
Bush administration, working as Deputy Assistant Attorney General for 
the Civil Rights Division.
  From 1995 until 2006, Leslie Southwick served as a member of the 
Mississippi Court of Appeals. During this time, Judge Southwick also 
served his country in uniform.
  From 1992 through 1997, he was a member of the Judge Advocate 
General's Corps in the U.S. Army Reserve. In 2003, he volunteered to 
serve in a line combat unit, the 155th Separate Armor Brigade. In 2004, 
he took a leave of absence from the bench to serve in Iraq with the 
155th Brigade Combat Team of the Mississippi National Guard.
  Mr. President, Judge Southwick is obviously very well qualified to 
serve on the Federal bench. Not only does he meet the requisite 
academic requirements, he also has real world experience in private 
practice and a dedication to public service.
  In my view, he deserves to be confirmed to the Federal bench. I urge 
my colleagues to support this eminently qualified nominee.
  Mr. HATCH. Mr. President, I strongly support the nomination of Judge 
Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit. 
His confirmation is compelling for two reasons. Judge Southwick should 
be confirmed because of his merits, and Judge Southwick should be 
confirmed because of the traditions of this body.
  Judge Southwick's merits are obvious. He is a good man and a good 
judge. Leslie Southwick has long been active serving his community, his 
church and his country. He is a man of character and integrity.
  Our colleagues from Arizona, South Carolina, and Virginia, Senators 
McCain, Graham, and Warner, have spoken forcefully and eloquently from 
their perspective as veterans about Judge Southwick's military service. 
He volunteered for service in Iraq when he was old enough to have 
children serving in Iraq. He did not have to do that, he offered to do 
that. It seems to me that we want men and women on the Federal bench 
who have this selfless commitment to serving others.
  Leslie Southwick is also a good judge. What could be more directly 
relevant to a Federal appeals court nomination than 12 years of State 
appeals court service? During that time, he participated in more than 
7,000 cases and wrote nearly 1,000 opinions.

[[Page 28083]]

  Earlier this year, the Congressional Black Caucus said that, in 
deciding whether to confirm Judge Southwick, we should consider how 
often his majority and concurring opinions were reversed on appeal. I 
do think that is a legitimate factor to consider. I thought I would 
find an unusually high number, that he has been repeatedly rebuked, 
rebuffed, and reversed, that Mississippi Supreme Court had to routinely 
put him in his judicial place. I found just the opposite. Only 21 of 
Judge Southwick's majority or concurring opinions were reversed or even 
criticized by the Mississippi Supreme Court. That is less than 2 
percent. I am indeed impressed by that low figure because it shows that 
Judge Southwick's work as a judge stands up under scrutiny. If that is 
an appropriate standard for evaluating his nomination, we should 
confirm him immediately.
  Judge Southwick's critics suggest that he is supposedly out of the 
mainstream. That is the phrase liberals invented 20 years ago to attack 
judicial nominees who they predict will not rule a certain way on 
certain issues. This is a completely illegitimate standard for 
evaluating judicial nominees and is based on a tally of winners and 
losers, as if judges are supposed to decide winners and losers by 
looking at the parties rather than at the law and the facts. Perhaps my 
liberal friends could publish a confirmation rate card, telling us how 
often judges are supposed to rule for one party or another in certain 
categories of cases. But the case against Judge Southwick is even more 
ridiculous than that. The case against Judge Southwick's nomination 
rests on just two, of the 7,000 cases in which he participated. It 
rests on 2 opinions, just 2, that he did not even write. No one has 
argued that those cases were wrongly decided. No one has argued that 
the court ignored the law. No one is making that argument because no 
one can. In fact, the Washington Post editorialized that Judge 
Southwick should be confirmed and said that while they might not like 
the results in these 2 cases, they could not argue with what the Post 
admitted was a ``legitimate interpretation of the law.''
  I ask my colleagues a very important, perhaps the most important, 
question: Are judges supposed to be legally correct or politically 
correct? Are judges supposed to decide cases based on legitimate 
interpretation of the law or based on which side wins or loses? Are 
judges supposed to apply the law or ignore the law? That question of 
what judges are supposed to do lies at the heart of every conflict over 
a judicial nominee, including the one before us today.
  The case against Judge Southwick is that, in just 2 cases with 
opinions he did not write, the court was legally correct instead of 
being politically correct. The case against Judge Southwick is that, in 
just 2 cases, the court did not ignore the law. What kind of crazy, 
topsy-turvy argument is this, that Judge Southwick should not be 
confirmed because as a state court judge he stuck to the law? I think 
that exposing the real argument against him is enough to show that 
there is no real argument against him at all. I thought we wanted 
judges on the Federal bench who would rule based on the law, who would 
be committed to equal justice for every litigant coming before them.
  When it comes to evaluating Judge Southwick's record, whom should we 
believe--partisan and ideological critics here in Washington or lawyers 
and judges who have worked with Judge Southwick for many years? That is 
not even a close call. Everyone who actually knows him, everyone who 
has actually worked with him, says that Judge Leslie Southwick is fair, 
decent, hard-working, and committed to equal justice under law. You 
would have to twist and contort his record into something else entirely 
to conclude otherwise.
  The American Bar Association also looked at Judge Southwick's fitness 
for the Federal bench. They evaluated his qualifications and record not 
once but twice, last year when he was nominated to the U.S. District 
Court and again this year after his nomination to the U.S. Court of 
Appeals. I must be candid with my colleagues regarding the ABA's two 
ratings of Judge Southwick. In the interest of full disclosure, I must 
be honest that the ABA's two ratings of Judge Southwick are not the 
same and, quite frankly, I think this must be considered when we vote. 
The ABA's rating for Judge Southwick's current appeals court nomination 
is higher than their rating for his district court nomination. The ABA 
says that it looks specifically at a nominee's compassion, freedom from 
bias, openmindedness and commitment to equal justice under law. The 
ABA's highest ``well qualified'' rating means Judge Southwick receives 
the highest marks for these qualities. I thought we wanted judges on 
the Federal bench who are compassionate, free from bias, openminded, 
and committed to equal justice under law. Judge Southwick's critics 
have offered nothing, absolutely nothing, to rebut this conclusion. 
Nothing at all.
  I think the record, the evidence, and the facts are clear. Judge 
Southwick is a good man and a good judge, and, based on his merits, he 
should be confirmed.
  Judge Southwick should also be confirmed because of the traditions of 
this body. Traditionally, the Senate has respected the separation of 
powers when it comes to the President's appointment authority. Under 
the Constitution, the President has the primary appointment authority. 
We check that authority, but we may not hijack it. We may not use our 
role of advise and consent to undermine the President's authority to 
appoint judges. That is why, as I have argued on this floor many times, 
it is wrong to use the filibuster to defeat judicial nominees who have 
majority support, who would be confirmed if only we could vote up or 
down. That is why I have never voted against cloture on a judicial 
nomination. That is why I argued against filibusters of even President 
Clinton's most controversial judicial nominees. And believe me, the 
case against some of those nominees was far greater, far more 
substantial, by orders of magnitude, than the nonexistent case against 
Judge Southwick.
  Traditionally, the Senate has not rejected judicial nominees based on 
such thin, trumped-up arguments. We have not rejected nominees who 
received the ABA's unanimous highest rating. In fact, I remember when 
this body confirmed judicial nominees of the previous President whom 
the ABA said were not qualified at all. We have not rejected judicial 
nominees who received such uniform praise from those who know them and 
worked with them. We have not rejected judicial nominees for refusing 
to ignore the law.
  Traditionally, the Senate has respected the views of home-state 
Senators. Our colleagues from Mississippi, Senators Cochran and Lott, 
are respected and senior members of this body. They strongly support 
Judge Southwick, and we should respect their views. Such home-state 
support was an important factor in moving even the most controversial 
Clinton judicial nominees to this floor and onto the Federal bench.
  So I say to my colleagues that Judge Southwick's merits and our 
traditions mean that he should be confirmed. Judge Southwick is a good 
man and a good judge. Our traditions respect the separation of powers, 
respect the obvious merits of nominees, and respect the views of home-
state Senators. I urge my colleagues not to veer from that path, but to 
support this fine nominee and keep the confirmation process from 
slipping further into the political mire.
  I urge my colleague to vote for cloture and to vote for confirmation.
  Mr. FEINGOLD. Mr. President, I will vote against the nomination of 
Judge Leslie Southwick to the U.S. Court of Appeals for the Fifth 
Circuit. I believe he should not be confirmed.
  The context for this nomination is important, so I want to turn to 
that first.
  During the last 6 years of the Clinton administration, this committee 
did not report out a single judge to the Fifth Circuit Court of 
Appeals. And, as we all know, that was not for lack of nominees to 
consider. President Clinton

[[Page 28084]]

nominated three well-qualified lawyers to the court of appeals. None of 
these nominees even received a hearing before this committee. When 
Chairman Leahy held a hearing in July 2001 on the nomination of Judge 
Edith Brown Clement, only a few months after she was nominated, it was 
the first hearing for a Fifth Circuit nominee since September 1994. 
Judge Clement was quickly confirmed. We have also confirmed two other 
Fifth Circuit nominees during this administration, Edward Prado and 
Priscilla Owen.
  So there is a history here. Some may think it is ancient history, but 
the fact is that nominees to this circuit were treated particularly 
unfairly during the Clinton administration, and there was a special 
burden for the current administration to work with our side on nominees 
for it. To ignore this history would be to simply reward the behavior 
of the Republicans during the last 6 years of the Clinton 
administration. And the numbers tell a very clear tale--3 judges 
confirmed for this circuit during the first 6 years of this 
administration, versus none in the last 6 years of President Clinton's 
term.
  President Bush did not act in a bipartisan way, of course, in the 
case of the seat for which Judge Southwick has been nominated. First, 
he nominated Judge Charles Pickering, leading to one of the most 
contentious floor fights of his first term. Judge Pickering was never 
confirmed by the Senate, but in a further slap to this institution, the 
President put him on the court through a recess appointment. Then, when 
Judge Pickering retired, the President nominated Michael Wallace, whom 
the ABA judicial nominations screening committee unanimously gave a 
rating of ``not qualified'' based on comments from judges and lawyers 
in his own State concerning his temperament and commitment to equal 
justice. Mr. Wallace ultimately withdrew his nomination when it became 
clear he could not be confirmed.
  Another important part of the context of this nomination is that 
except for the DC Circuit, the Fifth Circuit has the largest percentage 
of residents who are minorities of any circuit--over 40 percent. 
Thirty-seven percent of the residents of Mississippi are African 
American. Yet only 1 of the 19 seats on the circuit is currently held 
by an African American judge. The Fifth Circuit is a court that during 
the civil rights era issued some of the most significant decisions 
supporting the rights of African-American citizens to participate as 
full members of our society. It is a circuit where cases addressing the 
continuing problems of racism and discrimination in our country will 
continue to arise.
  In this context, as we come to the end of this President's term, I 
wanted very much to see, if not an African-American nominee, at least a 
nominee whose commitment to equal rights for all Americans and equal 
justice under law is unassailable. Judge Southwick is not that nominee. 
While the record we have been able to review is not extensive, two 
decisions he made as a judge raise real red flags.
  In the Richmond case, Judge Southwick joined the majority in a split 
decision upholding a hearing examiner's decision that an employee's use 
of the most offensive racial slur in our Nation's history was not 
adequate grounds for dismissal. That hearing examiner said that the 
slur was ``somewhat derogatory, but the term has not been used in 
recent years in the conversation that it was used in my youth, and at 
that point--at that time it was a derogatory remark. I think that in 
this context, I just don't find it was racial discrimination.''
  A unanimous Mississippi Supreme Court reversed the decision that 
Judge Southwick joined. Mr. Chairman, in the year 2007, in a State 
where 37 percent of the residents are African Americans, we need a 
judge on the Fifth Circuit who recognizes that such a decision had to 
be overturned.
  I am also disturbed by Judge Southwick's role in the child custody 
case, S.B. v. L.W., and particularly by his joining a stridently 
antigay opinion concurring in the decision to take a woman's child away 
from her and give custody to the unmarried father of the child. I found 
Judge Southwick's explanation of his reasoning in joining this opinion, 
and his assurances that he harbors no bias against gay Americans, 
unconvincing. I am simply not convinced by his assurances that he will 
give all litigants who come before him a fair hearing.
  Mr. President, it gives me no pleasure to vote against this nominee. 
As my colleagues know, I do not start with a predisposition against the 
President's choices. I have supported well over 200 of the President's 
judicial nominees. But no one is entitled to a lifetime appointment to 
our powerful Federal courts, and Judge Southwick has not demonstrated 
that he is the right nominee for this vacancy. I will vote no.
  I ask unanimous consent that letters of opposition and concern from 
the Congressional Asian Pacific American Caucus, the National 
Partnership for Women and Families, the California State Conference of 
the National Association for the Advancement of Colored People, the 
Congressional Black Caucus, and the NAACP be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                    Washington, DC, July 25, 2007.
     Re Jude Leslie Southwick nomination.

     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Leahy and Senator Specter: On behalf of the 
     Congressional Asian Pacific American Caucus (CAPAC), we write 
     to express our strong opposition to the nomination of Judge 
     Leslie Southwick to the United States Court of Appeals for 
     the Fifth Circuit.
       The Southwick nomination fails to address the lack of 
     diversity on Mississippi's federal branch. As you know, the 
     Fifth Circuit presides over the largest percentage of 
     minority residents (44%) of any circuit. Mississippi has the 
     highest African American population (36%) of any state in the 
     country. Yet, out of the seventeen seats on the Fifth 
     Circuit, only one is held by an African-American. 
     Additionally, the Fifth Circuit has issued decisions 
     important to minority communities such as employment 
     discrimination, voting rights and affirmative action. The 
     lack of diversity of the Fifth Circuit, compounded with Judge 
     Southwick's flawed record on race, further exemplifies the 
     unacceptability of Southwick's nomination.
       Judge Southwick's record as a judge on the Mississippi 
     State Court of Appeals clearly demonstrates that he is an 
     objectionable nominee for the Fifth Circuit. In the case of 
     Richmond v. Mississippi Department of Human Services, Judge 
     Southwick joined a 5-4 decision that upheld the reinstatement 
     of a white state social worker, Bonnie Richmond, who had been 
     fired for calling an African American co-worker a ``good ole 
     n***** '' at a meeting that included top agency executives. 
     The ruling that Southwick joined was unanimously reversed by 
     the Supreme Court of Mississippi.
       CAPAC is furthered disturbed by Judge Southwick's rulings 
     against consumers and workers in divided torts and employment 
     cases and worker rights. In 160 out of 180 published 
     decisions, Judge Southwick votes against the injured party 
     and in favor of business interests, such as corporations or 
     insurance companies.
       With the lifetime judicial position at stake, Southwick's 
     record has failed to reflect the values of social justice, 
     fairness and equality in this country. We strongly urge the 
     Judiciary Committee to reject Leslie Southwick's confirmation 
     to the Fifth Circuit.
           Sincerely,
     Michael M. Honda,
       Chair, CAPAC.
     Bobby Scott,
       Chair, CAPAC Civil Rights Task Force.
                                  ____

                                              National Partnership


                                        for Women & Familines,

                                    Washington, DC, June 21, 2007.
     Re nomination of Leslie Southwick to the U.S. Court of 
         Appeals for the Fifth Circuit.

     Hon. Patrick J. Leahy,
     Chair, Senate Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Judiciary Committee, Hart Building, 
         Washington, DC.
       Dear Senators Leahy and Specter: We write to urge you to 
     reject the nomination of Leslie Southwick for a seat on the 
     United

[[Page 28085]]

     States Court of Appeals for the Fifth Circuit. As an 
     organization committed to protecting and promoting women's 
     rights and eradicating discrimination in the workplace, the 
     National Partnership for Women & Families is troubled by 
     Judge Southwick's record and its implications for rights that 
     are vital to ensuring equal opportunity and access to 
     justice. Judge Southwick's failure to produce significant 
     portions of his record--effectively thwarting the thorough, 
     comprehensive review every federal appellate nomination 
     deserves and demands--only exacerbates these concerns.


                           incomplete record

       For the committee to consider fairly any nominee for a 
     lifetime appointment to a seat on the federal court of 
     appeals--the court of last resort in the vast majority of 
     cases--the nominee's entire record must be fully reviewed and 
     evaluated. Judge Southwick's failure to produce unpublished 
     opinions in which he participated and joined during his first 
     two years on the Mississippi Court of Appeals makes such 
     review impossible. These gaps in Judge Southwick's record 
     alone should give the committee pause in moving Judge 
     Southwick's nomination forward.


                       A Setback for Civil Rights

       A review of Judge Southwick's record calls into question 
     his commitment to the full enforcement of rights critical to 
     ensuring fair workplaces and access to justice. In Richmond 
     v. Mississippi Department of Human Services, 1999 Miss. App. 
     LEXIS 468 (Miss. Ct. App. 1999), Richmond, a social worker, 
     was terminated by the Mississippi Department of Human 
     Services for using a derogatory racial epithet. Richmond 
     appealed the decision and was reinstated by the state 
     Employee Appeals Board (EAB). A sharply divided Mississippi 
     Court of Appeals affirmed the EAB ruling. Judge Southwick 
     joined the Court of Appeals's 5-4 decision, which credited 
     Richmond's testimony that ``her remark was not motivated out 
     of racial hatred or animosity directed toward her co-worker 
     or toward blacks in general.'' The Mississippi Supreme Court 
     was unanimous in reversing the Court of Appeals, holding 
     instead that the EAB should either impose some penalty on 
     Richmond or make detailed findings why no penalty should be 
     imposed. Richmond v. Mississippi Department of Human 
     Services, 778 So. 2d 113, 114 (Miss. 2000). Three justices 
     would have gone further by reversing the EAB' s reinstatement 
     decision and upholding Richmond's termination.
       Judge Southwick's decision to join the majority in this 
     case is deeply troubling. The EAB's written decision is 
     limited and provides little explanation of its reasoning. The 
     primary record about the incident at issue consists of the 
     hearing officer's findings. The hearing officer found that 
     the racial epithet used by Richmond--referring to an employee 
     as a ``good ole n***** ''--was once considered 
     ``derogatory,'' but was no longer evidence of racial 
     discrimination. Instead, he characterized the phrase as akin 
     to calling someone a ``teacher's pet,'' ``chubby,'' or 
     ``slim.'' These statements indicate a failure to take this 
     incident seriously and are wildly out of touch with the 
     deeply offensive and charged nature of racial slurs. The 
     hearing officer's findings should have raised a red flag, 
     particularly in light of the diversity of the agency where 
     Richmond worked, where more than half of the employees were 
     African American, and the undoubtedly very diverse client 
     base the agency served--all factors that further heightened 
     the need for sensitivity to issues of race.
       Although Judge Southwick's ability to alter the outcome in 
     this case may have been constrained by the posture of the 
     case and the deferential standard of review, he still had 
     every opportunity to object to the use of the epithet and 
     demand a fuller explanation of why Richmond was reinstated by 
     writing a separate concurring opinion or working with the 
     authoring judge to modify the opinion. Judge Southwick did 
     neither of these things. That the dissenting judges on his 
     own court and each of the justices on the Mississippi Supreme 
     Court recognized the gravity of this incident while Judge 
     Southwick did not makes plain that Judge Southwick is out of 
     step with his peers on issues of racial justice. If the 
     opinion Judge Southwick joined had been the final word in 
     this case, Richmond would have been reinstated without any 
     discipline and would have faced no consequences for using a 
     horrible racial slur. Moreover, the underlying record and the 
     questionable assessment of the hearing officer would have 
     been left unrebutted, perhaps influencing the outcome of 
     future cases. Judge Southwick's deference to the decision of 
     the EAB despite the suspect findings on which that decision 
     was based calls into question his ability to apply the law to 
     ensure that workplaces in the Fifth Circuit-- the circuit 
     with the largest minority population--are free of 
     discrimination.
       Judge Southwick displayed similar insensitivity to the 
     rights of minorities in S.B. v. L.W., 793 So. 2d 656 (Miss. 
     Ct. App. 2001), a case in which the Mississippi Court of 
     Appeals granted custody of a child to the child's father 
     based on a number of factors, including the mother's sexual 
     orientation. Not content simply to review the lower court's 
     application of the custody standard and explain why the 
     application was or was not correct, Justice Southwick joined 
     a separate opinion to emphasize the immorality of the 
     mother's ``choice'' to engage in a ``homosexual lifestyle.'' 
     His decision to join an opinion that injected personal views 
     and divisive rhetoric into the legal analysis raises concerns 
     about whether he will apply the law without prejudice to all 
     who may come before him as a judge on the Fifth Circuit Court 
     of Appeals.


                      Hurdles for Injured Parties

       Judge Southwick's ability to apply the law fairly is also 
     called into question by his lopsided record favoring business 
     interests over individuals and his tendency to deny 
     plaintiffs their right to have their cases decided by a jury 
     of their peers. According to published reports, Judge 
     Southwick voted, in whole or in part, against the injured 
     party and in favor of the defendant, in 160 out of 180 non-
     unanimous published decisions involving state employment and 
     tort law. In a troubling number of cases, Judge Southwick 
     voted to prevent an injured party's case from being heard by 
     a jury based on cramped legal interpretations that erect 
     unreasonable barriers to pursuing one's day in court. See, 
     e.g., Cannon v. Mid-South X-Ray Co., 738 So. 2d 274 (Miss. 
     Ct. App. 1999).


                  Curtailing Civil Rights Protections

       Finally, Judge Southwick's view of the ``federalism 
     revival'' raises doubts about his commitment to civil rights 
     laws that have been essential to advancing equal employment 
     opportunities. In a 2003 article, Judge Southwick indicated 
     that he approved of the Supreme Court's recent limitations on 
     Congress's ability to pass civil rights legislation under its 
     commerce power, and on Congress's power to abrogate state 
     immunity and allow state employees to sue to vindicate their 
     rights under federal law. See Judge Leslie Southwick, 
     Separation of Powers at the State Level: Interpretations and 
     Challenges in Mississippi, 72 Miss. L. J. 927 (2003). This 
     narrow view of Congress's authority to combat and remedy 
     domestic violence and workplace discrimination raises 
     significant concerns for those who have looked to Congress to 
     ensure that crucial rights and protections extend to every 
     American.


                               Conclusion

       It is critical to ensure that judges elevated to the 
     federal appellate bench inspire confidence that the law is 
     being administered fairly, consistently, and without bias. 
     Because of the concerns outlined above, we urge the committee 
     to reject Judge Southwick's nomination.
           Sincerely,
                                                       Debra Ness,
     President.
                                  ____

         California State Conference of the National Association 
           for the Advancement of Colored People,
                                    Sacramento, CA, June 13, 2007.
     Re California State Conference of the NAACP opposition to the 
         nomination of Lesley Southwick to the 5th Circuit U.S. 
         Court of Appeals.

     Senator Patrick Leahy,
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Senator: The California State Conference of the 
     National Association for the Advancement of Colored People 
     (NAACP), our nation's oldest, largest and most widely 
     recognized grassroots civil rights organizer for stands in 
     strong opposition to the nomination of Lesley Southwick to 
     the U.S. Court of Appeals for the 5th Circuit. After 
     thoughtful review and careful analysis of Judge Southwick's 
     record, it is clear that Judge Southwick has a disdain for 
     civil rights, evidenced by a substantial sentencing disparity 
     on the basis of ethnic identity where African Americans are 
     overwhelmingly incarcerated. It is equally important to note 
     that the 5th Circuit, which covers Louisiana, Mississippi and 
     Texas, has the highest concentration of racial and ethnic 
     minorities in the country.
       Judge Southwick's record as a jurist on the Mississippi 
     State Court of Appeals clearly demonstrates that he is an 
     inappropriate nominee for the U.S. Court of Appeals for the 
     5th Circuit. 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 nigger'' at an employment-
     related conference. Richmond worked for the Mississippi 
     Department of Human Services (``DHS''), which terminated her 
     employment after other employees raised concerns about her 
     use of the racial slur. The ruling that Southwick joined was 
     unanimously reversed by the Supreme Court of Mississippi.
       The California State Conference of the NAACP is further 
     disturbed by Judge Southwick's rulings on race discrimination 
     in jury selection. His rulings demonstrate a clear lack of 
     support for or even understanding of the basis for civil 
     rights for African Americans in the American legal system. 
     Dozens of cases in this area reveal a pattern in which Judge 
     Southwick rejected the claims that the prosecution was 
     racially

[[Page 28086]]

     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, and appellate colleague 
     accused Judge Southwick of ``establishing one level of 
     obligation for the State, and a higher one for defendants on 
     an identical issue.''
       The 5th Circuit Court of Appeals has a history of 
     protecting and even promoting the civil rights of the racial 
     and ethnic minorities living within its jurisdiction. The 
     current court, however, does not appear to be following this 
     trend; indeed they appear more interested in curbing civil 
     rights and retarding civil liberties. Given Judge Southwick's 
     record, we believe he would only perpetuate this 
     discriminatory trend if he were confirmed. Therefore the 
     California State Conference of the NAACP must oppose Judge 
     Southwick's nomination to the 5th Circuit Court of Appeals 
     and urge you to do the same when his nomination is considered 
     by the Senate Judiciary Committee.
       On behalf of the California State Conference of the NAACP, 
     I want to thank the Senate Judiciary Committee for its 
     consideration of our letter of opposition to the Southwick 
     nomination. Should you have any questions, please do not 
     hesitate to contact me.
           Sincerely,
                                                 Alice A. Huffman,
     President.
                                  ____

                                        Congressional Black Caucus


                          of the 110th United States Congress,

                                     Washington, DC, May 24, 2007.
     Hon. George W. Bush,
     President, United States of America, The White House, 
         Washington, DC.
       Mr. President: On behalf of the nearly forty million 
     Americans we represent, including those in Louisiana, 
     Mississippi and your home state of Texas, we urge you to 
     withdraw the nomination on Leslie Southwick to the U.S. Court 
     of Appeals, Fifth Circuit. To say that our opposition to Mr. 
     Southwick is strong and unequivocal would be an 
     understatement.
       As you know, the Fifth Circuit presides over the largest 
     percentage of minority residents (44%) of any circuit. It has 
     issued seminal decisions on voting rights, affirmative 
     action, employment discrimination, discriminatory jury 
     selection, and the death penalty.
       The Southwick nomination fails to remedy the egregious 
     problem with the lack of diversity on Mississippi's federal 
     bench. It bears noting that Mississippi has the highest 
     African-American population (36%) of any state in the 
     country. Yet, you have nominated ten individuals to the 
     federal bench in Mississippi, none of whom has been African-
     American. While you have nominated three individuals to the 
     Fifth Circuit, none of them has been approved. The Southwick 
     nomination would compound the absence of diversity with a 
     nominee with an unacceptable record on race.
       Please consider Mr. Southwick's judicial record in the 
     following cases:
       In Richmond v. MS Dep't of Human Services, 1998 Miss. App. 
     LEXIS 637 (Miss. App. Ct. 1998), Southwick joined a decision 
     reinstating the job of a white employee who had used the word 
     ``nigger'' toward an African-American coworker.
       At an employment related conference, the white employee had 
     called the black employee ``a good ole nigger,'' and then 
     used the very same term toward the employee the next day back 
     at the office. The white employee was fired.
       The opinion joined by Southwick was reversed by the 
     Mississippi Supreme Court. 745 So. 2d 254 (Miss. 1999). No 
     one on the Supreme Court thought that the ruling of 
     Southwick's court was correct. They reversed and remanded the 
     case on the nature of the penalty or to make detailed 
     findings on the record why no penalty should be imposed. Some 
     members of the Supreme Court would not only have reversed, 
     but would have reinstated the judgment of the Circuit Court 
     upholding the termination.
       In Brock v. Mississippi, No. 94-LA-00634 (Miss. App. Ct. 
     Dec. 2, 1997), Southwick authored an opinion upholding a 
     conviction where the defendant had challenged the 
     prosecution's strike of an African-American juror.
       The prosecution had responded by stating that the juror was 
     struck because he lived in a high crime area.
       Southwick held that ``striking a juror based upon residency 
     in a high crime area is a race neutral explanation.'' Another 
     Court of Appeals judge disagreed with such a broad holding: 
     ``While [another state] has adopted the position that being a 
     resident of a high crime area is automatically a race neutral 
     reason to strike a potential juror, I am not prepared to do 
     so. Given existing housing patterns and common sense, there 
     are generally, common racial characteristics shared by 
     persons, who reside in so-called high crime areas. To accept 
     without reservation, a strike which on its face, appears 
     geared toward a racially identifiable group, has the 
     potential for great mischief.'' (King, J., concurring in 
     result).
       It is clear from this record that Mr. Southwick is not 
     properly suited to serve on the Fifth Circuit. In 160 out of 
     180 published decisions on state employment law or torts in 
     which one judge dissented, Southwick voted in favor of the 
     corporate defendant, in whole or in part.
       Mr. Southwick's intolerant racial views and his fixed 
     right-wing worldview make support for him a vote against 
     everything the CBC and African-Americans are striving for in 
     2007. Your continued support of Mr. Southwick would make a 
     bad Fifth Circuit problem worse. We trust that your 
     reconsideration of this nomination will result in a fairer 
     Fifth Circuit that is truly representative of the diverse 
     populations served by the Circuit.
           Sincerely,
     Carolyn Cheeks Kilpatrick,
                                Chair, Congressional Black Caucus.
     Bennie Thompson,
     Member, Congressional Black Caucus.
                                  ____

         Washington Bureau, National Association for the 
           Advancement of Colored People,
                                   Washington, DC, August 1, 2007.
     Re NAACP reiteration of strong opposition to the nomination 
         of Lesley Southwick to the 5th Circuit U.S. Court of 
         Appeals.

     Members,
     U.S. Senate, Committee on the Judiciary, Washington, DC.
       Dear Senators; On behalf of the National Association for 
     the Advancement of Colored People (NAACP), our nation's 
     oldest, largest and most widely-recognized grassroots civil 
     rights organization, I am writing to reiterate our 
     organization's strong opposition to the nomination of Lesley 
     Southwick to the U.S. Court of Appeals for the 5th Circuit. 
     Our opposition comes after a careful and thorough review of 
     Judge Southwick's record, and our resulting dismay with his 
     dismal record on civil rights. Our opposition to his 
     nomination is amplified by the fact that the 5th Circuit, 
     which covers Louisiana, Mississippi and Texas has the highest 
     concentration of racial and ethnic minority Americans in our 
     country.
       Judge Southwick's record as a judge on the Mississippi 
     State Court of Appeals clearly demonstrates that he is an 
     inappropriate nominee for the U.S. Court of Appeals for the 
     5th Circuit. 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 nigger'' at an employment-
     related conference. Richmond worked for the Mississippi 
     Department of Human Services (``DHS''), which terminated her 
     employment after other employees raised concerns about her 
     use of the racial slur. The ruling that Southwick joined was 
     unanimously reversed by the Supreme Court of Mississippi.
       The NAACP is further disturbed by Judge Southwick's rulings 
     on race discrimination in jury selection. They demonstrate a 
     clear lack of support for, or even understanding of the basic 
     civil rights of African Americans in the American legal 
     system. Dozens of cases in this area reveal a pattern in 
     which Judge Southwick rejected the 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 Judge Southwick of 
     ``establishing one level of obligation for the State, and a 
     higher one for defendants on an identical issue.''
       The 5th Circuit Court of Appeals has a history of 
     protecting and even promoting the civil rights of the racial 
     and ethnic minorities living within its jurisdiction. The 
     current court, however, does not appear to be following this 
     trend; indeed they appear more interested in curbing civil 
     rights and retarding civil liberties. Given Judge Southwick's 
     record, we believe he would only perpetuate this sad trend if 
     he were confirmed. Thus, the NAACP must oppose Judge 
     Southwick's nomination to the 5th Circuit Court of Appeals 
     and urge you to do the same when his nomination is considered 
     by the Senate Judiciary Committee.
       Finally, given Mississippi's long history of racial 
     apartheid, disenfranchisement, interposition, nullification 
     and massive resistance, it is unfathomable that President 
     Bush has not nominated a single African American to serve on 
     the Court of Appeals for the 5th Circuit or any of the 
     district courts during his tenure in office. This is 
     especially mind-boggling, given that 37% of Mississippi's 
     population is African American, the highest percentage of all 
     50 states. While it certainly is the President's prerogative 
     to nominate the individuals of his choice to the federal 
     judiciary, and while the NAACP does not advocate the 
     nomination of unqualified individuals simply because of the 
     color of his or her skin, we unequivocally reject the notion 
     that there are no qualified African Americans to fill this 
     vacancy on the 5th Circuit. Lesley Southwick's nomination 
     continues a stark pattern of racial discrimination and racial 
     exclusion in appointments by President Bush in a state and a 
     region that continues to need integration. The Senate 
     Judiciary Committee must defeat Lesley Southwick's nomination 
     based on his clear lack of qualifications and merit. This 
     will

[[Page 28087]]

     provide President Bush with the opportunity to nominate a 
     well-qualified racial or ethnic minority individual with the 
     appropriate judicial temperament to dispense justice as 
     intended by our Constitution.
       Thank you in advance for your attention to the NAACP's 
     strong opposition to the Southwick nomination. Please do not 
     hesitate to contact me if there is any more information I can 
     provide you on our position, or if you have any questions or 
     comments.
           Sincerely,
                                                Hilary O. Shelton,
                                                         Director.

  Mr. LEVIN. Mr. President, I will oppose the nomination of Leslie 
Southwick to the Fifth Circuit Court of Appeals because I have serious 
questions about his ability to be an impartial jurist.
  I am concerned that Judge Southwick's views of racial discrimination 
in jury selection reflect a lack of adequate respect for Supreme Court 
precedent. In Batson v. Kentucky, the Supreme Court ruled against 
preemptory dismissal of jurors without stating a valid cause for doing 
so may not be used to exclude jurors based solely on their race.
  The contrast between Judge Southwick's votes in jury challenge cases 
is particularly troubling. In the majority of cases where African-
American defendants have challenged their convictions on the ground 
that the prosecution used peremptory challenges to strike African-
American jurors, Judge Southwick voted against the defendant's 
challenge. Further, in the majority of cases where African-American 
defendants challenged their convictions on the ground that the 
prosecution had unfairly prevented them from using their peremptory 
challenges to exclude White--or in 1 case Asian American--jurors, the 
defendants, with Judge Southwick joining the majority, lost the 
challenges.
  There is other evidence of racial insensitivity that concerns me. In 
Richmond v. Mississippi Department of Human Services, Judge Southwick 
joined a 5-4 ruling upholding the reinstatement of a White State social 
worker who had been fired for referring to an African-American co-
worker as a ``good ole n*****'' during a meeting with high level 
company officials. After she was fired, Richmond appealed her 
termination to the State Employee Appeals Board, EAB, which ordered her 
reinstatement. The hearing officer opined that Richmond's use of the 
racial slur ``was in effect calling the individual a `teacher's pet.''' 
On appeal, Judge Southwick joined a majority that held that the use of 
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, 2 judges criticized the hearing officer and majority 
opinion for having 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 the racial epithet of ``n*****'' is ``inherently offensive, 
and [its] use establishes the intent to offend.''
  The ruling Judge Southwick joined was unanimously reversed and 
remanded on appeal by the Mississippi Supreme Court.
  Further, in Brock v. Mississippi, a case which upheld a criminal 
conviction where the prosecution used a preemptory challenge against an 
African-American juror purportedly because he lived in a high crime 
area, the dissenting judge criticized Judge Southwick's opinion for 
accepting the action of the prosecutor, which, ``on its face appears 
geared toward a racially identifiable group.''
  Some have tried to make the point that Judge Southwick did not write 
most of these opinions; rather that he merely signed on to them. If 
Judge Southwick did not agree with those opinions, he could have 
dissented. If he agreed with the holding but not the reasoning, he 
could have written a separate concurrence. To the contrary, he simply 
voted with the majority and supported their opinions.
  Because I do not believe that his record reflects the objectivity and 
even-handedness necessary to serve in a lifetime appointment on the 
Federal bench, I cannot vote to confirm his nomination.
   Mr. COBURN. Mr. President, today the Senate has a golden opportunity 
to take a big stride forward in working its way out of this judicial 
nomination mess we are in. At some point we as a body are going to have 
to take partisanship out of this judicial nomination process if we hope 
to continue to attract great candidates to the Federal bench. We have 
seen other great nominees withdraw because of the stress and difficulty 
of this process. Fortunately, Judge Southwick has stood firm so that 
the Senate has a chance to confirm him.
  Leslie Southwick is an Iraq veteran and has already demonstrated that 
he is a great jurist. From the testimonials of people in Mississippi, 
regardless of political or cultural differences, he is fairminded, not 
biased, and is an outstanding pick for this seat.
  It is incredible to observe the vitriolic opposition to this 
nomination that is built wholly on two written opinions in question 
that Judge Southwick did not even write. How can the Senate seriously 
say that those two opinions, in a vacuum, show that Judge Southwick is 
racist or insensitive to minority litigants? The support from African-
Americans in Mississippi exposes that the opposition is politically 
motivated.
  The Senate and the Judiciary Committee must step away from the 
politically based litmus tests that currently control the nominations 
process. We must also stop focusing purely on the results of cases, 
without any context to the facts and law at issue, as the sole 
indicator of a nominee's judicial philosophy.
  I ask my colleagues to seriously reconsider our current course and 
let Judge Southwick have a fair up-or-down vote.
  When we are reviewing judicial nominees, we should ask ourselves 
three questions:
  First, does the nominee have the basic qualifications to be a good 
judge?
  In this case, the answer is yes. The American Bar Association twice 
rated Judge Southwick ``well qualified,'' with the ABA actually 
increasing their rating to ``unanimously well qualified'' when he was 
nominated to the Fifth Circuit vacancy.
  Second, does the nominee possess the appropriate judicial temperament 
so that every litigant will be treated fairly when they come before 
this nominee?
  The answer again is yes. If you read the many letters from lawyers 
and judges in the Mississippi legal community, they clearly believe 
litigants are treated fairly and impartially before Judge Southwick.
  Third, does the nominee respect the proper constitutional role of a 
judge to not create law from the bench?
  Again the answer is yes. The record clearly demonstrates that Judge 
Southwick is and will be a restrained jurist.
  As Congress we should be thrilled when a judge shows that he will be 
restrained in his rulings from the bench. We write the laws, and we 
should be grateful that a judge knows he is not a Member of Congress 
and will defer to us in the task of writing law.
  Again, I ask my colleagues to move beyond petty partisanship with 
quality nominees like Judge Southwick, and let's give him a vote.
  I yield the floor.
  Mr. SPECTER. Mr. President, how much time remains?
  The PRESIDING OFFICER. There remain 27 minutes, including leadership 
time.
  Mr. SPECTER. Is that 27 minutes on the Republican side?
  The PRESIDING OFFICER. Correct.
  Mr. SPECTER. How much on the Democratic side?
  The PRESIDING OFFICER. Twenty minutes.
  Mr. SPECTER. I thank the Chair.
  Might I inquire of the senior Senator from Mississippi how much time 
he would like?
  Mr. COCHRAN. Mr. President, I would be happy to speak for up to 10 
minutes.
  Mr. SPECTER. I yield 10 minutes to the Senator from Mississippi.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.

[[Page 28088]]


  Mr. COCHRAN. Mr. President, it is very difficult to listen to the 
criticism of those who have not known Leslie Southwick in the context 
and with the experiences of those, obviously, who have worked with him, 
observed him in close range as a fellow lawyer, seen him take positions 
of public support for candidates who were running for office in 
Mississippi, being active in our Republican Party in Mississippi; being 
admired widely by all who have come to know him, practicing law with 
him, observing him as a lecturer at the Mississippi College School of 
Law, observing him serving voluntarily as an officer in the Mississippi 
National Guard, the U.S. Army Reserves, being deployed to Iraq, 
volunteering for duty to serve as a judge advocate, and accompanying 
Mississippi soldiers who were deployed to that region in time of war.
  He didn't have to do that. He is way beyond the age of most of those 
who were engaged in that operation and in that responsibility to 
protect the security interests of our country.
  It is so inconsistent--all of that--to those of us who know this 
nominee compared with the harsh, shrill pronouncements being made on 
this floor of the U.S. Senate by leaders of the opposition to this 
nomination. I am not going to criticize their right to disagree with 
those of us who support Judge Southwick, but I do want to point out 
that I hope Senators will look at the record that has been accumulated 
in the Senate as a result of statements made by Senator Lott, me, and 
others who have known Judge Southwick and others who are the most 
respectable and trustworthy people in our State and Nation who have a 
totally different view of him as a person and of his record as an 
appellate judge, as a lawyer, and as a professor of law.
  I hope Senators will take a look at who is saying what and base a 
judgment on this nomination on the things that have been said and the 
information that has been made available to the Senate from those who 
have spent time with Judge Southwick, who know him, or whether that 
will be outweighed by the harsh and shrill blandishments and criticisms 
and hyperbole and exaggerations and inaccuracies in the description of 
this person as a lawyer, as an individual, as a citizen who is here 
being subjected to totally unfounded criticism.
  I hope those words aren't too harsh. I believe they are just as true 
and accurate as can be. And it would be a disgrace on this body to 
block the confirmation, to vote against invoking cloture which, in 
effect, would kill the nomination. We are going to vote on whether to 
invoke cloture. It will take 60 votes to shut off debate so we can get 
to a vote on the confirmation.
  I have spoken on the floor on two or three occasions on this subject, 
back in June, I think, the first time. I have been reading the Record 
and looking at what I said July 19, 2007. I included after my remarks 
letters that I had received and that the committee had received from 
lawyers, judges, and acquaintances of Leslie Southwick over the past 30 
years of his life. I am not going to burden the Record by putting all 
those letters in or reading them or reading excerpts from them, but 
these are some of the finest people, and some of them are liberal 
Democrats. Some of them are active today as elected officials in our 
State. Others are just fellow lawyers, people who have worked with him 
closely, a State supreme court justice. Former Gov. William Winter is 
an example.
  This morning, I found on my desk in my office when I came to work a 
letter that had been faxed to me, I guess, this morning. At 9:01 a.m. 
it was received in my office. It is from the Secretary of State of 
Mississippi, Eric Clark. And because this is a new letter, I think I 
will read it. It is actually addressed to me and Senator Lott:

       Dear Senator Cochran and Senator Lott:
       I sat at home last night and listened on C-SPAN to the 
     debate on Judge Leslie Southwick, and I feel compelled to 
     write you this letter.
       I am the senior Democratic elected official in Mississippi. 
     I have been elected to office eight times as a Democrat. I am 
     retiring from politics in January, so I have no ax to grind 
     by commenting on this debate. During my entire career in 
     public service, I have aggressively promoted the inclusion of 
     all Mississippians, and particularly African-Americans, at 
     the decision-making table in Mississippi. I take a back seat 
     to no one in promoting inclusion in our state.
       It has been my pleasure to know Leslie Southwick for more 
     than 20 years. If I had to name 1 person who is kind, fair, 
     smart, thoughtful, and open-minded, it would be Leslie 
     Southwick. For any Senators who have been told or who have 
     concluded otherwise, that is wrong--as wrong as it can be.
       We in Mississippi are quite accustomed to being the objects 
     of negative stereotyping. Of course, it is much easier to 
     believe a stereotype about someone than to make the effort to 
     get to know that person. It is perfectly clear to me that 
     this is what is happening to Judge Southwick.
       It seems to me that what is being decided in this case is 
     not whether Leslie Southwick would be a good and fair judge--
     we could not have a better or fairer one. What is being 
     decided, I think, is whether the United States Senate 
     considers judicial nominees based on truth and merit, or 
     based on politics and partisanship.
       Let me make my point as plainly as I can: Leslie Southwick 
     is the polar opposite of an ignorant and bigoted judge--the 
     polar opposite of that stereotype. I hope that the Senate 
     passes the test of recognizing the truth and acting 
     accordingly.
       Thank you. Sincerely, Eric Clark, Secretary of State of 
     Mississippi.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. COCHRAN. I yield the floor.
  Mr. SPECTER. Mr. President, how much time remains on the Republican 
side?
  The PRESIDING OFFICER. There is 16\1/2\ minutes remaining, including 
the leadership time.
  Mr. SPECTER. I see the distinguished Senator from Mississippi, Mr. 
Lott, on the Senate floor. How much time would Senator Lott like?
  Mr. LOTT. Just a couple minutes.
  Mr. SPECTER. Senator Lott can have as much time as he wants. It 
sounds as if he wants 5 minutes. I yield to Senator Lott.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. LOTT. Mr. President, I don't want to repeat everything that has 
been said. I was going to read this letter from our secretary of state, 
Eric Clark. My senior colleague just read it, and I am glad he did. I 
appreciate how he feels.
  I do feel hurt in some ways by what has happened in this particular 
case. This is a good and honorable man, qualified by education, by 
experience, by temperament. He deserves to have an up-or-down vote. We 
should vote for cloture, and then we should have an up-or-down vote on 
this judge for a position that is a judicial emergency for the Fifth 
Circuit Court of Appeals, which is a very broad-based circuit court of 
appeals. He will be a fine addition to that court.
  I want to end on a positive note because Judge Southwick has waited a 
long time, has been open and available to anybody who was willing to 
meet with him, not just the Judiciary Committee members but others, 
including House Members.
  We are here because Senator Dianne Feinstein showed unbelievable 
courage by voting to report this nominee out of the Judiciary Committee 
after very careful analysis, looking at the cases, meeting with the 
nominee. I will always be indebted to her and appreciative of what she 
did.
  I have to acknowledge that the Judiciary Committee, in this case led 
by the very aggressive support of Senator Specter, has done its job, 
and has done it well, and we have reached a point of final 
determination.
  I also thank the majority leader and the Republican leader for 
working together to find time to make this happen. I know from 
experience, majority leaders do not have to allow votes such as this to 
occur, and I suspect the majority leader has been criticized for it.
  I do believe that this is a moment in time--I hope it is not 
fleeting--where we can return to some modicum, some small amount of 
bipartisanship, nonpartisanship, and civility. I think Senator Reid, 
Senator McConnell, Senator Feinstein, and Senator Specter have made the 
right steps to make that possible.
  I urge my colleagues to vote for cloture and vote for this nominee. 
He will be a credit to the court on which he will serve, the Fifth 
Circuit Court of

[[Page 28089]]

Appeals. He will exhibit the character and the positions that I believe 
the people in the Senate will think are appropriate for the rest of his 
life.
  I believe confirmation of this judge will reflect well on the Senate 
and will pay dividends in many ways not visible at this moment.
  I thank Senator Specter for yielding this time.
  I yield the floor.
  Mr. SPECTER. How much time remains, Mr. President?
  The PRESIDING OFFICER. There is 12\1/2\ minutes remaining.
  Mr. SPECTER. Mr. President, we only have the Senators from 
Mississippi and myself on the floor. For any other Republicans who wish 
to speak, now would be a good time to come to the floor. I know our 
leader, Senator McConnell, will be speaking shortly, at 10:40 a.m., but 
there is still 11 minutes remaining.
  I yield 10 minutes to the distinguished Senator from Florida, Mr. 
Martinez.
  Mr. President, that will take us right up to 10:40 a.m., at which 
time it is my understanding there is an order for the two leaders to 
speak. I yield 10 minutes now to Senator Martinez.
  The PRESIDING OFFICER. Without objection, the Senator from Florida is 
recognized for 10 minutes.
  Mr. MARTINEZ. Mr. President, I thank the Senator from Pennsylvania. I 
am very pleased to speak on behalf of a good man to occupy a very 
important position. The Fifth Circuit is a very important court. I want 
to talk about this nomination as a person who practiced law for a 
quarter of a century. Twenty-five years of my life I spent in 
courtrooms in Florida. As a result of that experience, I have a great 
and abiding respect for our judicial system and for what it does for 
people to reasonably and in an orderly way settle disputes, and also 
for those who run afoul of the law to be brought through a justice 
system that is fair, that is just, and that works for all Americans.
  At the pinnacle of all that, at the very centerpiece of the judicial 
system that functions is the judiciary. And in the judiciary, we need 
to have the best. We need to have people of dedication. We need to have 
people of competence and people with impeccable credentials. That is 
the kind of judge Judge Southwick is and the kind of person he will 
make as a judge on the Fifth Circuit.
  I wish to talk about the process. It is a process that has become 
much too poisoned. It has become much too divisive and increasingly 
hostile. What occurs then is that between the inadequate salaries 
judges in the Federal judiciary now make in comparison to what they 
could easily be making in the private sector, as well as the difficult 
gauntlet they must run in order to be confirmed and to then have the 
opportunity of serving their Nation as a member of the judiciary, I do 
believe it is very important that judicial candidates be given a fair 
and timely hearing, that they be given fair and timely consideration.
  I believe all too often we allow dissident groups to gain our 
attention, not mine but some of those who do pay attention to the 
outside noise when it comes to judicial candidates. I don't believe it 
is appropriate that we should allow for outside influences to steer us 
in different directions that become more and more divisive.
  When it comes to judicial candidates, we ought to look for 
qualifications. We ought to look for experience. We ought to look for 
those things we could consider. I always think, is this the kind of 
judge I would like to try a case in front of, is this the kind of judge 
I would like to take my clients' affairs in front of to have a fair, 
impartial, and reasoned disposition of the matter I bring before the 
judge? If he or she is that kind of person, they should be given 
confirmation. To allow outside and distracting political debates to be 
a part of the confirmation process is simply wrong.
  I was pleased when Chief Justice Roberts was going through the 
process and he used language in his confirmation hearing that ought to 
ring true with all of us. He said he viewed his role as a judge as that 
of an umpire. He viewed his role as someone who could come into the 
courtroom and call it as he sees it, call balls and strikes. For the 
vast majority of what a judge does, that is what it is about. It is 
about calling balls and strikes. It is not about pitching. It is not 
about catching, not about hitting. It is about calling balls and 
strikes. That is the role of the judge. That is the role of the 
judiciary. We honor that role when we accept a judicial candidate who 
is otherwise qualified, who has an impeccable record. I used to be 
called from time to time by the ABA committee, the American Bar 
Association, that looks at candidates and they would ask: What kind of 
judge would he make? Would he have the right judicial temperament? 
These are the things we want to know. Is he knowledgeable of the law? 
Would he be a fair and impartial judge? Does he have the ethical 
considerations to be the kind of person who is going to set higher 
standards for those on the bar, who is going to be the kind of person 
society will accept when he makes a difficult ruling that sometimes has 
to come from the court?
  It is with great pleasure that I support this nominee. I hope my 
colleagues will do so as well. It is important we restore a certain 
normalcy to the confirmation process. I say this fully understanding 
that in about a year and some months, there could very well be someone 
of a different party who has a very different philosophy about who 
should be on the bench than the current President. At that time, I will 
be prepared to live by the standard I have laid out today, which is a 
standard of qualifications, a standard that puts aside political 
considerations, a standard that looks at a judicial nominee, as we have 
done for most of the history of our country. The departure we have had 
over the last several years is not a healthy one. It is not positive 
for the judicial system and for the admission of justice. This is a 
standard I will be prepared to live with, even if someone from a 
different party than mine is making judicial nominations. I will look 
to their qualifications, experience, ethical standing. Is this the kind 
of judge I would have been happy to have my client take matters before.
  I would expect a fair and impartial judge to make a learned and 
reasonable decision based on the facts, the evidence, and the law. That 
is what judges are about, analyzing facts and law and making a judicial 
determination of how to rule in a given case. It is not about politics 
that more belong in a body such as ours and not on the bench.
  How much time remains?
  The PRESIDING OFFICER. There remains 5\1/2\ minutes before leadership 
time.
  Mr. MARTINEZ. 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. McCONNELL. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, shortly we will have an extremely 
important vote in terms of our ability to deal with judicial 
confirmations in the future. There has been widespread bipartisan 
concern that the confirmation process has descended to a point with 
which most of the Members on both sides of the aisle are uncomfortable. 
We will have an interesting test shortly as to whether the Senate can 
use cloture not to defeat a judge but to move a nomination forward. 
That is the way it has been done in the past. We have had controversial 
judicial nominations from time to time over the years, controversial 
with a few but not all of the Senate. The way cloture was used in those 
situations was to advance a nomination, not to stop it. I am reminded 
when Senator Lott was the majority leader, there were a couple of 
controversial nominations from California. His view was they were 
entitled to an up-or-down vote. We invoked cloture on the nomination. I 
remember voting for cloture because I believed judges were entitled to 
an up-

[[Page 28090]]

or-down vote and then not supporting the judge on final passage.
  We have before us the nomination of a Mississippi lawyer named Leslie 
Southwick. He wanted to serve his country in the Armed Forces. At 42, 
he was too old to do so. But service to others is a duty Leslie 
Southwick has always taken very seriously, whether in the Justice 
Department or on the State bench or with Habitat for Humanity or in 
doing charity work for inner-city communities. So in 1992, 42-year-old 
Leslie Southwick sought an age waiver to join the U.S. Army Reserves. 
The country had the good sense and the good fortune to grant this 
request.
  Leslie Southwick continued to serve in the Armed Forces after he was 
elected to the State court of appeals in 1994. He conscientiously 
performed his military and judicial duties, even using his vacation 
time from the court to satisfy the required service period in the 
Mississippi National Guard.
  In 2003, LTC Southwick volunteered for a line combat unit, the 155th 
Separate Armor Brigade. His commanding officer, MG Harold A. Cross, 
notes that his decision ``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.'' Colleagues such as attorney Brian Montague 
were not surprised. ``Despite the love of wife and children,'' Leslie 
Southwick volunteered for a line combat unit over a safer one ``because 
of a commitment to service to country above self-interest.''
  In August of 2004, Leslie Southwick's unit mobilized in support of 
Operation Iraqi Freedom. His commanding officer states he distinguished 
himself at forward bases near Najaf. Another officer, LTC Norman Gene 
Hortman, Jr., described Leslie Southwick's service in Iraq as follows:

       Service in a combat zone is stressful and challenging, 
     often times bringing out the best or the worst in a person. 
     Leslie Southwick endured mortar and rocket attacks, travel 
     through areas plagued with IEDs, extremes in temperature, 
     harsh living conditions . . .--the typical stuff of Iraq. He 
     shouldered a heavy load of regular JAG Officer duties which 
     he performed excellently. He also took on the task of 
     handling the claims of numerous Iraqi civilians who had been 
     injured or had property losses due to accidents involving the 
     U.S. military . . .
       Leslie always listened to these Iraqi claimants patiently 
     and treated them with the utmost respect and kindness. He did 
     this not just out of a sense of duty but because he is a 
     genuinely good and caring person. His attitude left a very 
     positive impression on all those that Leslie came in contact 
     with, especially Iraqi civilians he helped. This in turn 
     helped ease tensions in our unit's area of operations . . . 
     and ultimately, saved American lives.

  Lieutenant Colonel Hortman concludes that Leslie Southwick ``has the 
right stuff''--the right stuff--for the Fifth Circuit Court of Appeals: 
``Profound intelligence, good judgment, broad experience, and an 
unblemished reputation.'' He adds:

       I know him and can say these things without reservation. 
     Anyone who says otherwise simply does not know him.

  Stuart Taylor writes in the National Journal that Leslie Southwick 
``wears a distinctive badge of courageous service to his country,'' and 
that he ``is a professionally well-qualified and personally admirable'' 
nominee to the Fifth Circuit.
  Judge Southwick does not seek thanks or notoriety or charity for his 
military and other civic service. He asks to be judged fairly--to be 
judged on the facts, to be judged on his record. It is the same 
standard he has applied to others as a judge, a military officer, and a 
teacher. It is a standard for which he is well known and admired. By 
that standard, he is superbly fit to continue serving his country, this 
time on the Fifth Circuit. Senators Cochran and Lott, his home State 
Senators, know this. They are strongly behind him. As everyone knows, 
his peers on the State bar know this. They honored him as one of the 
State's finest jurists, saying he is ``an example of judicial 
excellence; a leader in advancing the quality and integrity of justice; 
and a person of high ideals, character and integrity.''
  The American Bar Association knows this. It has twice given him its 
highest rating: ``well-qualified.'' In doing so, the ABA found him to 
be exemplary in the areas of ``compassion,'' ``open-mindedness,'' 
``freedom from bias and commitment to equal justice under law.''
  Democrats on the Judiciary Committee knew this too. Last fall all of 
them--every single one--looked at his record and approved him for a 
lifetime position to the district court. Congress adjourned before he 
could be confirmed, and Judge Southwick was renominated to fill a 
judicial emergency on the Fifth Circuit. Two things then occurred. 
First, the ABA increased his rating--increased his rating--from ``well-
qualified'' to ``unanimously well-qualified.'' In other words, not a 
single person on the ABA committee found him anything other than the 
most qualified nominee possible. Second, in August, the committee 
favorably reported his nomination to the floor with bipartisan support.
  Unfortunately, some of our colleagues on the other side who had 
supported his nomination to the Federal bench last fall seem to have 
changed their mind. Since there is no material change in Judge 
Southwick's credentials other than the ABA actually giving him an even 
higher rating for the circuit bench than they gave him for the district 
bench, the sudden change is indeed puzzling.
  Critics now point to two cases out of 7,000, neither of which Judge 
Southwick wrote, and both of which existed when the committee 
unanimously approved him last fall. One of our colleagues even asserts 
that because these two cases create a perception among some outside 
groups about potential unfairness, this ``perceived fairness'' standard 
should determine our vote on Judge Southwick.
  That is a standard I would say I would hate to have applied to 
nominations by a Democratic President by Republican Senators. And 
remember, we are setting a standard here that will apply not only to 
this nomination but to other nominations in the future.
  The notion that mere perception, not reality, should determine 
whether someone is confirmed is troubling, to say the least. We expect 
the judges we confirm to rule based on the facts. We should not judge 
their fitness for office based on perception rather than the facts. In 
the case of Judge Southwick, the sudden ``perception'' about his 
fairness is driven by those who do not even know him, and it is amply 
disproven by his long record and by those who know him very well.
  But more broadly, if we start opposing well-qualified nominees 
because outside groups have manufactured an unfair perception of them, 
then we will have established a precedent that will affect us all, as I 
indicated a minute ago, and for the worse--regardless of who is in the 
White House and which home State Senators support a nomination. Is the 
standard going to be around here the perception created by some outside 
group? I think that is a standard that would be very dangerous, no 
matter who is in the White House.
  I urge my colleagues not to undo the good work and goodwill that 
brought us back from the precipice we had almost descended into a few 
years ago on judicial confirmations. I urge them to think hard about 
the ramifications of their vote for the future, and to vote for cloture 
on the Southwick nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that letters of 
opposition and concern from numerous organizations regarding the 
nomination now before the Senate be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Fair Housing Alliance,

                                     Washington, DC, June 6, 2007.
     Hon. Patrick Leahy,
     Chairman, U.S. Senate Judiciary Committee,
     Washington, DC.
       Dear Chairman Leahy: The National Fair Housing Alliance 
     (NFHA) is strongly opposed to the nomination of Leslie 
     Southwick to the Fifth Circuit Court of Appeals.
       NFHA is dedicated to ending housing discrimination and 
     ensuring equal housing opportunity for all people. With 
     several member organizations within the Fifth Circuit,

[[Page 28091]]

     we are deeply concerned about a nominee whose civil rights 
     record reveals a lack of commitment to equality and justice.
       We find the civil rights record of Judge Southwick on the 
     Mississippi Court of Appeals quite troubling. His rulings on 
     race discrimination in the areas of employment and jury 
     selection lead us to question his ability to be a fair and 
     impartial decision-maker in cases involving housing 
     discrimination.
       Judge Southwick participated in a shocking 5-4 decision 
     that essentially excused an employee's use of a racial slur. 
     The holding in Richmond v. Mississippi Department of Human 
     Services affirmed a Mississippi Employee Appeals Board 
     hearing officer's decision to reinstate an employee who had 
     been fired for calling her co-worker a ``good ore nigger.'' 
     The officer had concluded that the employer had overreacted 
     because the term was not a racial slur but rather equivalent 
     to calling the black employee ``teacher's pet.'' The 
     majority, including Judge Southwick, agreed, finding that 
     taken in context, the comment ``was not motivated out of 
     racial hatred or racial animosity directed toward a 
     particular co-worker or toward blacks in general.''
       This decision drew a strong dissent and was unanimously 
     reversed by the Mississippi Supreme Court. The dissenters 
     stated that the majority's reasoning ``strains credulity'' 
     because ``[t]he word `nigger' is, and has always been 
     offensive.'' They went on to argue that ``the hearing officer 
     and the majority opinion seem to suggest that absent evidence 
     of a near race riot, the remark is too inconsequential to 
     serve as a basis of dismissal.''
       Judge Southwick's reasoning in Richmond is indicative of a 
     general lack of concern for rice discrimination, and it 
     reveals a potential hostility toward equal opportunity in 
     housing. Many cases of housing discrimination involve 
     intimidation through racial slurs. In this context, as in all 
     contexts, the word ``nigger'' is powerful, offensive, and 
     threatening. The following cases are indicative of the 
     pervasive nature of this deplorable conduct in housing cases:
       In Bradley v. Carydale Enterprises, the Eastern District of 
     Virginia ordered compensatory damages for an African-American 
     woman whose neighbor had called her ``nigger.'' The court 
     noted that the term ``deeply wounded'' the woman, pointing to 
     her humiliation and embarrassment, sleepless nights, and 
     inability to perform at her job.
       In Smith v. Mission Associates Ltd. Partnership, an on-site 
     property manager called a white tenant a ``nigger-lover'' 
     because of his live-in girlfriend's bi-racial children, and 
     the manager's son told one of these children he didn't like 
     ``niggers.'' Based on this and other racially hostile 
     conduct, the District of Kansas held that the plaintiffs had 
     established a prima facie case for a hostile housing 
     environment under the Fair Housing Act.
       In Cousins v. Bray, the Southern District of Ohio granted 
     the plaintiffs' motion for a preliminary injunction against 
     eviction and any attempts of harassment, intimidation, or 
     threats. The court found that the plaintiffs' allegations 
     that defendants had referred to their biracial sons as 
     ``niggers'' helped to establish that race motivated their 
     eviction, in violation of the Fair Housing Act.
       And just this month, in United States v. Craft, the Seventh 
     Circuit relied on an arsonist's use of the term ``nigger'' to 
     determine that he targeted a black man's house because of the 
     victim's race. It held the arsonist in violation of the 
     portion of the Fair Housing Act that prohibits the use of 
     coercion or intimidation to interfere with property rights.
       As these cases demonstrate, our federal courts acknowledge 
     that harmful racial slurs like ``nigger'' are powerful tools 
     in the denial of fair housing. We are deeply concerned that 
     based on his record, Judge Southwick does not share these 
     ideals, and we question his ability to be a fair and 
     impartial decision-maker in these and other civil rights 
     cases.
       Thus, we strongly oppose Judge Southwick's nomination to 
     the Fifth Circuit Court of Appeals and believe the Senate 
     should not confirm him.
           Sincerely yours,
                                                     Shanna Smith,
     President.
                                  ____

                                                 Service Employees


                                          International Union,

                                     Washington, DC, June 6, 2007.
     Hon. Patrick Leahy,
     Chair, U.S. Senate Judiciary Committee
     Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, U.S. Senate Judiciary Committee
     Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: I am 
     writing on behalf of the 1.8 million members of the Service 
     Employees International Union (SEIU), including the health 
     care, public sector and property service members who live and 
     work in the Fifth Circuit, to oppose the nomination of Judge 
     Leslie H. Southwick to the United States Court of Appeals. 
     SEIU joins the civil rights organizations, professional 
     societies and editorial boards which have stated their 
     opposition to Judge Southwick's nomination because of his 
     consistent record of hostility to the rights of minorities 
     and gay parents as well as his practice of going beyond the 
     resolution of the case at issue to inject his own views on 
     social and legislative policies into his decisions. We write 
     separately to express our concerns regarding Judge 
     Southwick's rulings regarding workplace issues and his 
     ability to fairly enforce the nation's labor and employment 
     laws.
       In his dissent in Cannon v. Mid-South X-Ray Co., 738 So. 2d 
     274 (Miss. App. Ct. 1999), Judge Southwick argued that the 
     claim of Annie Cannon, a worker exposed to toxic chemicals in 
     her work place, should be rejected because it was barred by 
     the statute of limitations. Ms. Cannon had begun to 
     experience health problems soon after the start of her 
     employment as a darkroom technician. However, while the 
     severity of the problems increased over time, Ms. Cannon's 
     condition was not diagnosed by a doctor as work related until 
     sometime later. Based on this diagnosis, Ms. Cannon filed 
     suit.
       Judge Southwick argued that all that is necessary for the 
     statute of limitations to run against a plaintiffs claim is 
     that the plaintiff know of her illness, not the cause of her 
     illness. This rule, as the eight judges in the majority 
     recognized, places an unreasonable burden on a worker ``who 
     cannot reasonably be expected to diagnose a disease on which 
     the scientific community has yet to reach an agreement.'' 
     While Ms. Cannon knew she was sick, she did not know she had 
     been injured by the defendants until her disease was 
     affirmatively diagnosed by her doctor and therefore should 
     not have been required to file a cause of action which she 
     did not know even existed.
       The use of a procedural device by Judge Southwick to deny 
     an injured worker her day in court is chillingly similar to 
     the rule announced by Justice Alito in Ledbetter v. Goodyear 
     Tire & Rubber Co., 550 U.S.--(2007). In that case, Lilly 
     Ledbetter's pay disparity claim was not ``easy to identify'' 
     because the impact of that discrimination, like Ms. Cannon's 
     illness, grew over time and when it reached the point that it 
     was clear that discrimination, or work place chemicals, was 
     the cause, an action was filed. In upholding the dismissal of 
     Ms. Ledbetter's case, Justice Alito relied upon same statute 
     of limitations procedural device employed by Judge Southwick 
     in denying Ms. Cannon her day in court.
       In another dissent, Judge Southwick offers a gratuitous 
     insight into his judicial philosophy on the subject of 
     employment at will. The employment at will doctrine, which is 
     premised on the illusion that employers and individual 
     workers have equal power in the employment relationship, has 
     been consistently criticized and limited by legislative and 
     judicial action over the last hundred years. However, in 
     Dubard v. Biloxi H.M.A., 1999 Miss. App. Lexis 468 (1999), 
     rev'd, 778 So. 2d 113, 114 (Miss. 2000), Judge Southwick 
     opines that ``employment at will . . . 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.'' Judge Southwick's radical statement of 
     judicial philosophy calls into question the legitimacy of 
     most federal employment laws enacted in the twentieth 
     century, from the minimum wage to the Family and Medical 
     Leave Act, implying that they are inconsistent with a 
     democratic system of government.
       Judge Southwick's record of judicial activism evidences a 
     willingness to erect insurmountable barriers to workers 
     seeking access to the courts and an aversion of laws which 
     limit the employer's unrestricted right to control the 
     employment relationship. He should not be given a lifetime 
     appointment to a court where he will be called upon to 
     enforce laws that he clearly disdains by injured workers who 
     he believes have no right to ask for relief. We ask the 
     Committee to reject the nomination of Judge Southwick to the 
     United States Court of Appeals for the Fifth Circuit.
           Sincerely,
                                                      Anna Burger,
     International Secretary-Treasurer.
                                  ____



                                  National Women's Law Center,

                                     Washington, DC, June 6, 2007.
     Re Nomination of Leslie Southwick to the U.S. Court of 
         Appeals for the Fifth Circuit
     Hon. Patrick J. Leahy,
     Chair, U.S. Senate Judiciary Committee,
     Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, U.S. Senate Judiciary Committee, Washington, 
         DC.
       Dear Senators Leahy and Specter: We write to express our 
     serious concerns regarding the nomination of Leslie Southwick 
     to the U.S. Court of Appeals for the Fifth Circuit. As an 
     organization dedicated to advancing and protecting women's 
     legal rights, the National Women's Law Center (NWLC) has 
     reviewed Judge Southwick's available record, his testimony 
     before the Committee, and his responses to Senators' written 
     questions in order to assess his commitment to upholding 
     essential civil rights protections. This substantive review 
     has led the Center to

[[Page 28092]]

     conclude that there is a significant basis to doubt that 
     commitment. Under these circumstances, it is especially 
     troubling that hundreds of unpublished opinions that Judge 
     Southwick joined while on the Mississippi Court of Appeals 
     have not been produced to the Committee. As a result, the 
     legal record that serves as the basis for determining his 
     fitness for a lifetime position on the Fifth Circuit remains 
     woefully incomplete. Consequently, we urge the Committee not 
     to advance Judge Southwick's nomination until all of his 
     record has been made available and has been reviewed, and 
     until the substantive concerns have been satisfied.
       Judge Southwick's actions in S.B. v. L.W. and Richmond v. 
     Mississippi Department of Human Services raise significant 
     concerns. Judge Southwick joined a separate concurrence in 
     S.B. v. L.W. and joined the majority opinion in Richmond. 
     Although he did not write those opinions, the result and 
     reasoning therein is properly ascribed to him. As Judge 
     Southwick stated in his hearing before the Committee, his 
     decision to join an opinion as a judge on the Mississippi 
     Court of Appeals meant that he at least agreed with the 
     outcome espoused by that opinion. He also acknowledged at the 
     hearing that he could have worked with the author of an 
     opinion to change its language and at all times had the 
     option of writing his own separate opinion.
       In S.B. v. L. W., a 2001 custody case involving the 
     parental rights of a mother in a homosexual relationship, 
     Judge Southwick joined the majority in its holding awarding 
     custody to the father. He also chose to join a concurrence 
     that gratuitously took pains to elaborate the punitive 
     ``consequences'' that may be imposed on individuals in 
     homosexual relationships, including the loss of custody of a 
     child. The concurrence expounded upon the state's ability, 
     grounded in principles of ``federalism,'' to limit the rights 
     of homosexual Americans in the area of family law and 
     characterized participation in a homosexual relationship as a 
     ``choice'' and ``exertion of a perceived right.'' In 
     addition, although neither party to the case had raised 
     constitutional questions, the concurrence undertook to 
     discuss constitutional precedent in a highly selective manner 
     to support its conclusion that the Mississippi legislature 
     had permissibly taken a policy position with regard to the 
     rights of homosexual individuals in domestic relations 
     settings that would limit the custody rights of homosexual 
     parents. The opinion cited the Supreme Court's decision in 
     Bowers v. Hardwick, which upheld criminal penalties for 
     sodomy, but ignored Romer v. Evans, which struck down a 
     ballot initiative that ``classifie[d] homosexuals not to 
     further a proper legislative end but to make them unequal.'' 
     To make matters worse, when Judge Southwick was questioned 
     about the concurrence's failure to discuss Romer, he answered 
     that neither Romer nor Bowers was argued by the parties to 
     the case. However, his answers do not speak to why the 
     concurrence only cited Bowers, and, therefore, do not allay 
     our concerns about the impartiality of the legal analysis in 
     this case.
       Furthermore, while Judge Southwick indicated in written 
     responses that the custody decision would be evaluated 
     differently today in light of the Supreme Court's decision in 
     Lawrence v. Texas, he did not directly address concerns 
     raised by the language of the concurrence either in his 
     written answers or in his testimony, although he was asked to 
     do so. He did not clarify whether he considers homosexuality 
     to be a choice as suggested in the concurrence and provided 
     no persuasive justification for his seeming endorsement of 
     extraordinarily harsh penalties for that so-called choice.
       Judge Southwick's decision to join the majority opinion in 
     Richmond v. Mississippi Department of Human Services, 
     affirming a state review board's decision to overturn a state 
     agency's termination of an employee for referring to an 
     African-American employee as a ``good ole n*****,'' also 
     raises serious concerns. The majority in Richmond concluded 
     that the terminated employee ``was not motivated out of 
     racial hatred or racial animosity directed toward a 
     particular co-worker or toward blacks in particular,'' and 
     that there was no ``credible proof'' that the use of this 
     highly inflammatory racial epithet caused substantial 
     problems within the agency workplace. This majority opinion 
     failed to adequately consider the discrimination inherent in 
     the use of that particular racial epithet and required an 
     unnecessarily stringent showing of disruption from the 
     employing agency. The Mississippi Supreme Court unanimously 
     reversed the Court of Appeals' decision, remanding to the 
     review board to make findings as to whether the agency acted 
     properly under state personnel rules, and as to whether a 
     lesser penalty than termination should be imposed.
       Judge Southwick's testimony before the Senate Judiciary 
     Committee and his responses to written questions did not 
     alleviate NWLC's concerns. It is disturbing that Judge 
     Southwick continues to consider the majority opinion in 
     Richmond well-reasoned and declined to criticize the opinion 
     he joined in part so as not to ``change horses mid-stream.'' 
     In addition, Judge Southwick's characterization of the 
     standard of review in his written questions as whether no 
     evidence sported the review board's decision (rather than 
     whether substantial evidence support it) is incorrect. 
     Whether the mischaracterization represents his original 
     understanding of the standard of review or a post-hoc attempt 
     to justify joining the majority, his position is equally 
     troubling. Further, although the Mississippi Supreme Court 
     concluded that the employee should not have been terminated, 
     2 strong dissents raised grounds for Judge Southwick to 
     consider whether his decision to join the majority opinion 
     was correct: First, that the Court of Appeals improperly 
     placed the burden of proof upon the agency with regard to the 
     issue of the disruptive effect of the epithet; second, that 
     failing to terminate the employee could have subjected the 
     agency to a federal discrimination action and thus would have 
     constituted negligence; and third, that the majority of the 
     Mississippi Supreme Court substituted its judgment for the 
     review board's. As a result, Judge Southwick's reliance on 
     the Mississippi Supreme Court opinion in answer to questions 
     about whether he believed his decision to join the majority 
     in Richmond was correct does not eliminate our concerns.
       Although our concerns are primarily grounded in only two of 
     the reported cases that came before Judge Southwick on the 
     Mississippi Court of Appeals, these cases are significant 
     because they are among the few in his available record that 
     raise constitutional and civil rights issues that Judge 
     Southwick would face if confirmed to the Fifth Circuit. 
     Moreover, hundreds of unpublished opinions that Judge 
     Southwick joined during his first 2 years on the Mississippi 
     Court of Appeals have not been tamed over to the Committee. 
     These opinions could implicate an even broader range of legal 
     issues and could shed light on Judge Southwick's approach to 
     the constitutional and federal legal issues that come before 
     the Fifth Circuit. It is critical for Senators and the public 
     to be able to review a nominee's complete record when a 
     lifetime appointment to the federal bench is at stake. To 
     allow this already-questionable nomination to move forward 
     while substantial gaps in the record exist would be highly 
     unfortunate and unwarranted.
       No judicial nominee enjoys a presumption in favor of 
     confirmation; rather, it is the nominee who carries the 
     burden of convincing the Senate that he or she should be 
     confirmed. NWLC respectfully urges the Committee not to vote 
     Judge Southwick out of committee while his record remains 
     incomplete, and while substantive concerns raised by his 
     available record have not been allayed. If you have questions 
     or if we can be of assistance, please contact us at (202) 
     588-5180.
           Sincerely,
     Nancy Duff Campbell,
       Co-President.
     Marcia D. Greenberger,
       Co-President.
                                  ____

                                     Parents, Families and Friends


                                         of Lesbians and Gays,

                                     Washington, DC, June 7, 2007.
     Senator Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Leahy and Senator Specter: On behalf of more 
     than 200,000 members and supporters of Parents, Families and 
     Friends of Lesbians and Gays (PFLAG), I am writing to urge 
     the Judiciary Committee to reject the nomination of Judge 
     Leslie H. Southwick to the 5th Circuit Court of Appeals. 
     There is absolutely nothing in Judge Southwick's troubling 
     record, written responses, or testimony to the committee to 
     indicate that he can fairly judge cases involving gay, 
     lesbian, bisexual or transgender families or any other 
     minority parties.
       As a member of the Mississippi Court of Appeal, Judge 
     Southwick joined a majority opinion which took custody of an 
     eight-year-old child away from her mother, citing in part the 
     mother's ``lesbian home'' and ``homosexual lifestyle'' as 
     justification for the decision. Additionally, Judge Southwick 
     was the only other judge to join a concurring opinion by 
     Judge Payne that unnecessarily referenced the state's 
     probation on gay and lesbian adoption, despite the fact that 
     this was not an adoption case, using the phrase ``the 
     practice of homosexuality'' throughout. Most disturbingly, 
     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.
       We hope that you will agree that all American families, 
     including those living in Mississippi, Louisiana, and Texas, 
     deserve a federal court system free from bias, regardless of 
     their sexual orientation or gender identity. We are in no way 
     confident that Judge Leslie H. Southwick can provide that 
     basic right. Because of this, we strongly urge you to oppose 
     the nomination of Leslie H. Southwick to a lifetime seat on 
     the 5th Circuit Court of Appeals.
       For more information please contact our Assistant Director 
     of Programs, Elizabeth

[[Page 28093]]

     Hampton Brown, at (202) 467-8180 ext. 211 or e-mail 
     [email protected].
           Sincerely,
                                                  Jody M. Huckaby,
     Executive Director.
                                  ____



                                         Alliance for Justice,

                                     Washington, DC, May 31, 2007.
     Hon. Patrick J. Leahy,
     Chair, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy and Senator Specter: No nominee to a 
     lifetime seat on our federal courts is entitled to a 
     presumption of confirmation. As Senator Leahy has stated, the 
     Senate's constitutional ``advice and consent'' role is a 
     serious responsibility, by which ``those 100 of us privileged 
     to serve in the Senate are entrusted with protecting the 
     rights of 280 million of our fellow citizens.'' Were the 
     Senate to confirm Judge Leslie Southwick to a lifetime 
     appointment on the Fifth Circuit, it will in fact have placed 
     in jeopardy the rights of many of the most vulnerable of our 
     fellow citizens. As a judge on the Mississippi Court of 
     Appeals, Judge Southwick assembled a deeply troubling record 
     in cases involving the interests of vulnerable parties, 
     consistently favoring corporations, insurance companies, and 
     other powerful interests over vulnerable workers and 
     consumers. His record also calls into question his commitment 
     to equal dignity and equal justice for minorities.
       Judge Southwick's published opinions reveal that he voted 
     89 percent of the time against injured workers and consumers 
     in divided employment and torts decisions. In a number of 
     these cases, Judge Southwick harshly interpreted laws and 
     precedents to favor corporate defendants. In Goode v. Synergy 
     Corporation, Judge Southwick voted to deny a family, who sued 
     the propane company after their grandchild was killed in a 
     fire, a new trial even though there was new evidence 
     previously undisclosed by the company, showing that the 
     company's conduct may have caused the fire.
       Although there are few cases that shed light on Judge 
     Southwick's views on civil rights, those that do are 
     profoundly troubling. Astonishingly, in one of his 
     exceedingly rare decisions in favor of an employee, he joined 
     the court's 5-4 opinion in Richmond v. Mississippi Dep't of 
     Human Services, which upheld an Employee Appeals Board 
     decision to reinstate, with full back pay, a woman who used a 
     racial slur in reference to a coworker, calling her a ``good 
     ole n*****.'' In neither the opinion he joined, nor in his 
     answers to questions at his confirmation hearing, did he 
     express doubts about the decision he joined in Richmond. He 
     and his colleagues on the majority also declined to remand 
     the case to the Board for assessment of a lesser penalty--as 
     one dissenting opinion urged and the Mississippi Supreme 
     Court later ordered in reversing the Court of Appeals. Judge 
     Southwick and the majority would have allowed the employee 
     full reinstatement with back pay in spite of the epithet.
       In S.B. v. L.W., Judge Southwick joined a homophobic 
     concurrence arguing that sexual orientation was a perfectly 
     legitimate basis on which to deny a parent custody of one's 
     child. At his hearing, he attempted to explain this opinion 
     as a reflection of the intent of the legislature as to the 
     rights of gay parents. However, a dissenting opinion in S.B., 
     along with a subsequent Mississippi Supreme Court decision 
     stating that sexual orientation was not a basis on which to 
     deny child custody, demonstrate that Judge Southwick's 
     attempt to deflect criticism to the state legislature is 
     questionable indeed.
       The Senate must be especially wary of Judge Southwick's 
     nomination because the president, in his six years in office 
     thus far, has engineered a transformation of the federal 
     courts to reflect an ideology that is hostile to the rights 
     of minorities and our society's most vulnerable members. 
     Moreover, the president has shown little willingness to 
     promote diversity on the bench. Astonishingly, there has 
     never been an African-American Fifth Circuit judge from 
     Mississippi, a state with a population that is 37% African-
     American. Thus, it is particularly troubling that the 
     President has now nominated someone to this Mississippi seat 
     whose record raises such grave doubts about his racial 
     sensitivity and his commitment to equal justice for all 
     Americans.
       President Bush and his Senate allies have exploited every 
     opportunity to confirm the nominees of the hard right, 
     steamrolling venerable Senate rules and traditions to achieve 
     this goal. The current Senate now faces a choice: stand up to 
     nominees who will make our courts even less friendly to our 
     most vulnerable citizens; or inherit a share of President 
     Bush's disturbing legacy of remaking the courts in the 
     partisan image of his right wing base. Judge Leslie Southwick 
     represents a crossroads, and the Senate should choose to 
     reject his nomination and insist that the President submit a 
     nominee with a demonstrated commitment to equal rights and 
     fairness to all Americans, regardless of their race, sexual 
     orientation or economic status.
           Sincerely,
                                                         Nan Aron,
                                                        President.

  Mr. REID. Mr. President, first of all, let me say I have the greatest 
respect for my senior colleague, the Senator from Mississippi, Mr. 
Cochran, who is always a gentleman in everything he does. I have worked 
on the floor with Senator Lott during the time I was assistant leader, 
and I have the greatest respect for him. I appreciate the way they have 
handled this and not making it personal in nature simply because I 
oppose something they want.
  I say in response to my friend, the distinguished Republican leader, 
there is a different standard, as well there should be, for someone who 
is going to be placed on the trial court than somebody placed on the 
appellate court. So the reasoning that Senators approved in the 
committee a judge for a district court--clearly, the tradition in the 
Senate is, with rare exception, they are approved--so the argument that 
we have approved somebody for a trial court so they should 
automatically be approved for an appellate court simply is not valid.
  Our Constitution outlines the shared responsibility between the 
Senate and the President of the United States to ensure that the 
judiciary is staffed with men and women who possess outstanding legal 
skills, suitable temperament, and high ethical standing.
  As a leader, I have worked hard to ensure that the Senate carries out 
its work with respect to judicial nominees fairly and promptly, and 
with a lot of transparency.
  The judicial confirmation process today is working well, and all 
Senators should be pleased to know that the judicial vacancy rate is 
currently at an all-time low. For people who yell and shout and 
complain about the Democrats not allowing Republicans to assume the 
bench, the judicial vacancy rate today is at an all-time low. We have a 
Judiciary Committee that has helped this significantly. Senator Pat 
Leahy, Senator Arlen Specter--the chairman and ranking member of that 
committee--have as much collegiality as I have ever seen in a committee 
since I have been in the Senate. They have been fair, and they have 
been fast.
  This year alone, the Senate has confirmed 32 judicial nominees, 
including four court of appeals nominees--in addition to the more than 
250 others who have been approved during the past 6 years of the Bush 
administration.
  In contrast, my Republican colleagues and my Democratic colleagues 
will clearly recall that during the Clinton administration, the 
Republican-controlled Senate refused to confirm 70 nominees. Think 
about that: 70 nominees. Many of them did not even have the courtesy of 
a hearing. Some of them waited almost 4 years for a hearing.
  I remember how we were treated. But we have chosen to live by the 
Golden Rule. We have chosen this is not ``get even time;'' this is a 
time to be fair and to be open. The Golden Rule: Treat people as you 
would want them to treat you. I am happy to say that is how we have 
done this.
  Judges with impeccable records, such as Ronnie White and Richard 
Paez, were maligned by Republicans merely for partisan political gain. 
That is wrong. We do not intend to initiate any of that while we are in 
charge of the Senate.
  But today we face a judicial nomination that has attracted strong 
opposition. I turned in what is part of this Record a stack of 
organizations and individuals who simply oppose this nomination for 
lots of different reasons.
  Opposition to the nomination of Judge Leslie Southwick for the Fifth 
Circuit Court is neither partisan nor political. It is factual. These 
facts are present deep within the fundamental American commitment to 
civil justice and equal rights, which is something we must stand by.
  In the past few weeks, our Nation has seen the recurrence of racial 
issues that we had assumed and hoped were behind us. Yet, the recent 
events in Jena, LA, and at the U.S. Coast Guard academy--where nooses 
were hung to intimidate, demean, and belittle people of color--
demonstrate that issues of race and intolerance are sorrowfully still 
present in our society.

[[Page 28094]]

  For many Americans, for many African Americans, and for the 
Congressional Black Caucus--of which this body only has one member. 
When I first came to the House of Representatives, there were about 20 
members of the Congressional Black Caucus. Now there are 78. I believe 
that is the number. That is good. That is good for our country. But 
those individuals concerned know the Federal courts have historically 
represented the first, last, and often the only form of redress against 
racism and civil injustice. For that reason, I believe this body has 
little choice but to consider the nomination of Judge Southwick to the 
Fifth Circuit Court in the context of race and civil rights.
  I heard Senator Schumer here this morning talk about the demography 
of the State of Mississippi. That has to be something we take into 
consideration.
  President Bush is asking us to confirm Southwick for one of the 
highest judicial positions in the United States: The United States 
Circuit Court of Appeals. It is a lifetime appointment. But for a court 
as important as the Fifth Circuit, Judge Southwick is the wrong choice. 
His record on the Mississippi State court does not justify a promotion. 
That is why I rise, once again, as I have many times regarding Judge 
Southwick, to express my strong opposition to this nomination. I urge 
my colleagues to join me in voting ``no.''
  As a member of the Mississippi State appellate court, Judge Southwick 
joined decisions that demonstrate insensitivity to, and disinterest in, 
the cause of civil rights.
  Mr. President, I ask unanimous consent that the hour of 11 o'clock 
time for the vote be extended. I should be finished shortly.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I do believe that as a member of the 
Mississippi State appellate court, Judge Southwick joined decisions 
that demonstrate insensitivity to, and disinterest in, the cause of 
civil rights.
  For example, in the Richmond case, he voted to uphold the 
reinstatement with back pay of a White State employee who had used a 
racial epithet about an African-American coworker.
  Judge Southwick says the decision was about technical legal issues, 
but the dissent in the case by his colleague, Judge King, explains what 
was at stake. It was not a technical legal issue. As I said when I 
began, it was based on the facts. Judge King wrote, regarding the ``N'' 
word--and I quote him:

       There are some words, which by their nature and definition 
     are so inherently offensive, that their use establishes the 
     intent to offend.

  It was clear in this decision that Judge Southwick should have joined 
what would have been the majority. The majority would have been with 
Judge King. He decided not to go with what would have been the majority 
and created his own majority to, in effect, agree that using this ``N'' 
word was nothing more than an offhand remark that meant nothing. It 
took the courageous action of judges on the Fifth Circuit to carry out 
the Supreme Court's desegregation decisions and destroy the vestiges of 
the Jim Crow era.
  Judge Southwick, from what I have learned about him, is not capable 
of being part of that. Yet Judge Southwick's record gives us absolutely 
no reason to hope that he will continue this tradition of delivering 
justice to the aggrieved.
  That is why there is no shortage of opposition to this nomination, 
first and foremost, as I have said, from our colleagues, Members of 
Congress, the Black Caucus. They cite opposition by the Magnolia Bar, 
the Mississippi NAACP, and countless other organizations that stand for 
justice. They have asked us to remember that their constituents are our 
constituents--some 45 million of them--and they deserve representation 
on this issue.
  His decision in the Richmond case is his most serious problem, but 
Judge Southwick has failed in many other areas. He sides continually 
with plaintiffs in bad cases. He always, with rare exception, joins 
with corporations and not the workers. He appears to favor defendants.
  There is no reason why the President can't find a nominee with a 
record fairly representing all people. If we reject Judge Southwick, 
the President will still have an opportunity to nominate another 
candidate. Judge Southwick's record has been fully documented by my 
colleagues who have spoken before me. His most grievous failure--I 
repeat--a failure to give full weight to the vile meaning and history 
of the ``N'' word--is deeply disturbing. I cannot overlook it.
  I urge all my colleagues to join me in voting ``no,'' so we can find 
a candidate truly befitting this important lifetime appointment--a 
candidate who will give the people of the Fifth Circuit the confidence 
they deserve that their claim to justice will be heard with the respect 
and equality every American citizen deserves.
  The PRESIDING OFFICER. All time for debate has expired.
  Mr. LEVIN. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Michigan will state his 
inquiry.
  Mr. LEVIN. How many votes are required to invoke cloture and end the 
debate on the pending nomination under the rules and precedents of the 
Senate?
  The PRESIDING OFFICER. It will be three-fifths of the Members duly 
chosen and sworn, that being 60.
  Mr. LEVIN. I thank the Chair.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant 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, 
           and Thad Cochran.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Leslie Southwick to be United States Circuit Judge for 
the Fifth Circuit shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Connecticut (Mr. Dodd), and the Senator from 
Massachusetts (Mr. Kennedy) are necessarily absent.
  I further announce that if present and voting, the Senator from 
Massachusetts (Mr. Kennedy) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 35, as follows:

                      [Rollcall Vote No. 392 Ex.]

                                YEAS--62

     Akaka
     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Byrd
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kyl
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--35

     Baucus
     Bayh
     Biden
     Bingaman
     Brown
     Cantwell
     Cardin
     Casey
     Clinton
     Durbin
     Feingold
     Harkin
     Kerry
     Klobuchar
     Kohl

[[Page 28095]]


     Landrieu
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--3

     Boxer
     Dodd
     Kennedy
  The PRESIDING OFFICER. On this vote, the yeas are 62, the nays are 
35. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The PRESIDING OFFICER. Under the previous order, the question is, 
Shall the Senate advise and consent to the nomination of Leslie 
Southwick to be United States Circuit Judge for the Fifth Circuit.
  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Connecticut (Mr. Dodd), and the Senator from 
Massachusetts (Mr. Kennedy) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kennedy) would vote ``nay.''
  The PRESIDING OFFICER (Mr. Webb). Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 59, nays 38, as follows:

                      [Rollcall Vote No. 393 Ex.]

                                YEAS--59

     Akaka
     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--38

     Baucus
     Bayh
     Biden
     Bingaman
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Durbin
     Feingold
     Harkin
     Inouye
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--3

     Boxer
     Dodd
     Kennedy
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid upon the table, and the President is notified of the 
Senate's action.
  Mrs. CLINTON. Mr. President, I opposed the nomination of Leslie 
Southwick to serve a lifetime appointment on the U.S. Court of Appeals 
for the Fifth Circuit. His tenure as a judge on the Mississippi Court 
of Appeals reveals a record that fails to honor the principles of 
equality and justice and demonstrates a disregard for civil rights.
  The American people deserve Federal judges--regardless of who 
nominates them--who are dedicated to an evenhanded and just application 
of our laws. In case after case, Judge Southwick has demonstrated a 
lack of respect and understanding for the civil rights of all 
Americans, and particular indifference towards the real and enduring 
evils of discrimination against African Americans and gay and lesbian 
Americans.
  After reviewing his judicial opinions and examining his 
qualifications, I have concluded that Judge Southwick's regressive 
civil rights record should disqualify him from serving a lifetime 
appointment on the Court of Appeals for the Fifth Circuit. I urge the 
President to select judicial nominees who embrace the principle that 
all are equal under the law.

                          ____________________