I got an email from the Human Rights Campaign, in general not one of my favorite organizations because of their ineffectiveness. But this one was entitled “Not Fit to Serve” and it piqued my curiosity. So, I clicked on over, and somewhat unexpectedly it was about the confirmation proceedings for Leslie Southwick. Southwick is an anti-gay, possibly racist judge from Mississippi that was appointed by W to the regional federal appeals court for his home state. (5th Circuit)
Over the flip you'll find her press release about her vote on this one. It might make you uncomfortable knowing that this was a Democrat who wrote this one, but it's true. Let her know that she was just wrong.
“I have given a lot of thought to this nomination. I have reviewed his record, his transcript. I’ve read the letters. I’ve had a full and very lengthy meeting with him in my office.
What emerged was an appreciation on my part that Judge Southwick is a qualified, circumspect person. That’s hard to believe when I listen to the words of my colleagues. I don’t believe he’s a racist. I don’t believe I’m a racist. I believe he made a mistake.
Now the question is, ‘Does one ever overcome their mistakes?’ I believe they do, perhaps some don’t. But I believe he is a good person. I believe he is steeped in the law, and he’s got 11 years of appellate experience.
Now I remember what happened to Ronnie White and, Mr. Chairman, I don’t like that either. And my hope is that we can put these days behind us. And that we can give people a fair hearing, and that we can move them on.
I think what sometimes gets lost in our debates about judicial nominees is that they are not just a collection of prior writings or prior judicial opinions. They are, first and foremost, people. And in my conversations with Judge Southwick, I have gotten a sense of what kind of person he is, and the kind of appellate judge that I believe he will be, given that opportunity. Now can I be wrong? Sure, I can be wrong. Have I been wrong before? I don’t know. But all I can do is give this my best judgment.
There is also the fact that he is nominated to a seat that has been vacant for seven of the past eight years. The vacancy opened in August 1999, and was filled for one year in 2004 by the recess appointment of Charles Pickering. Judge Pickering was not confirmed to the seat, and since the end of 2004 it has been vacant again.
The Administrative Office of the Courts has designated this seat as a ‘judicial emergency.’ And Judge Southwick is the third nominee to this seat. After Judge Pickering, Michael Wallace was nominated for the position. His nomination was not approved by this Committee.
I think one of the duties of our Committee is a duty also to the citizens who rely on the federal courts of appeals – a duty to ensure that the courts function properly and that vacancies on the courts are filled. And by any cut, seven years is too long for a vacancy to remain open.
Now I can go back years, and I can bring up Willie Fletcher, and he was delayed four years and I remember Senator Hatch helping to get him through when the Republicans were in control. But it’s fair to say that the vacancy before us is a longtime vacancy on the Fifth Circuit.
I look at this judge as an experienced appellate judge. He sat on the state court of appeals in Mississippi for 11 years, from January 1995 to December 2006. As has been said, he heard roughly 7,000 appeals. Well, I know I sat on 5,000 cases on the California women’s term and parole board. Just 5,000 over almost six years, and this is a lot of cases.
The concerns around Judge Southwick center around two opinions he joined. One of them was a child custody case involving a same-sex relationship, and the other involved a state employee’s use of a very odious racial slur.
These were two cases out of the 7,000 in which he participated. He did not write the opinions; he joined them. One was a majority opinion joined by four other judges on his court and one was a concurring opinion in a case where he also joined the majority.
Ultimately, the case involving the odious racial slur was reversed by the state Supreme Court and remanded for consideration of a different penalty. And that is good.
The ruling of Judge Southwick’s court in the child custody case apparently was not appealed to the state’s high court.
I strongly believe that Judge Southwick should not have joined the opinions in those cases as they were written. That is my view. But I also believe that they alone should not disqualify him for a federal judgeship.
He has received the highest possible rating from the American Bar Association committee that evaluates judicial nominees – a unanimous rating of ‘well qualified’ for this judgeship.
Ten years into his service on the state court of appeals, the Mississippi State Bar awarded him their Judicial Excellence Award. That award, given by the legal community that I hope knows him best, described him as ‘a leader in advancing the quality and integrity of justice’ and as ‘a person of high ideals, character, and integrity.’ You wouldn’t believe that if you listened to my colleagues.
There is even more powerful evidence of his character. As a 54-year-old military reservist in the Judge Advocate General’s Corps of the U.S. Army, he volunteered in 2004 to serve in a unit that was going to be deployed to Iraq.
And by 2004 his new unit, the 155th Brigade Combat Team, had been called to active duty. Judge Southwick took a leave of absence from his job as a state court of appeals judge.
And from January to December 2005, he served in Iraq. He served as Deputy Staff Judge Advocate at Forward Operating Base Duke, which is near Najaf, and later as Staff Judge Advocate for the 155th Brigade, stationed at Forward Operating Base Kalsu.
How many judges have done that? Now maybe that doesn’t count in the views of some. But it should count, I think, as a kind of test of character of a man. Fifty-four years old and he volunteers essentially to go to Iraq, and he does go to Iraq for one year.
Now, add this. Last year, we approved him for a district court seat by unanimous consent. Ultimately the full Senate failed to vote on his nomination, but if we had, it is almost certain that he would be serving as a district judge today.
When we considered his district court nomination last year the ABA rating of ‘well qualified’ was not unanimous. As I have said, the ABA has now rated him unanimously ‘well qualified’ for this seat. In the view of the ABA committee, he’s I guess more qualified for this seat than he was for the seat that we unanimously approved him for last year.
Now, let me say this. Again, if I believed he was racist I would not vote for him. But I actually don’t. And it’s very hard for me to put that kind of an appellation on someone if you don’t believe that is true.
I spoke with him yesterday and I asked him: Please in writing address the concerns, particularly the odious slur, that have led to so much opposition on behalf of the civil rights community, the House, members on my side of the aisle.
And he responded with a letter, and I would like to ask unanimous consent that it be entered into the record.
And I would like to read this letter:
‘As you made clear to me today, one of your principal concerns is about an opinion that I joined which evaluated the use of a racial slur by a state employee. With your indulgence, I would like to give as complete an explanation as I can of my thoughts on the slur itself and how it was discussed in the opinion.
The court said that the use of the word “cannot be justified” by any argument. It could have gone far beyond that legalistic statement. Captured in this one terrible word is a long, dark, sad chapter in our history. This racial slur is unique in its impact and painful to hear for many, including myself. I said at my hearing that this is the worst of all racial slurs. Its use is despicable. All people of good will should make their rejection of the word clear. The opinion had an opportunity to express more fully and accurately the complete disgust that should greet the use of this word. Such a statement would certainly be consistent with my own beliefs that this is the worst kind of insult. As I testified, everyone took this issue extraordinarily seriously. I regret that the failure to express in more depth our repugnance of the use of this phrase has now led to an impression that we did not approach this case with sufficient gravity and understanding of the impact of this word.
Since this opinion has been considered by some to be the window into my own beliefs, a peek into my soul, allow me to give you some events in my life that reflect my strong beliefs in fairness and opportunity for all and my rejection of racial insults.
I always tried to treat everyone who came before me as a judge with respect. I gave a memorandum to each of my law clerks that they were to use no disparaging words towards anyone in a draft opinion, no matter what the appeal was about. From the bench and in my opinions, I followed that same rule. I believe that everyone whom I encounter, whether as a judge or in some purely private capacity, is deserving of my respect.
I took a broad view in looking for staff. I was one of the original ten judges on the Court of Appeals, taking office in January 1995. In my second year on the court, I became the first white judge to hire an African-American law clerk on that court. I could not have been more pleased with her work, and she went on to be a partner in a major Mississippi law firm. I was equally pleased with the two additional African-American clerks I hired before I left the court.
For several years – until funding problems caused its demise – I was the president of a local charity called the Jackson Servant Leadership Corps. This was a faith-based charity that provided a house in the inner city for five recent college graduates to live for a year, and to learn about working for charities. They were provided a stipend by AmeriCorps and worked at a local soup kitchen, for Habitat for Humanity, and for other charities. Every Martin Luther King Day we were the coordinators for work projects in the community, matching up volunteers with needs.’
And it goes on. And he concludes by saying this:
‘Until the last two months, my fairness and temperament had not been subject to criticisms. The recent concern may have arisen from the fact that only one piece of evidence was being used, namely, the racial slur opinion. A much better explanation of my own abhorrence of this slur clearly could have been written. I have tried in this explanation to express my disgust for the use of that word and to present some of the evidence from my own life to prove my commitment to furthering the civil rights of all.’
Now, I am going to vote in favor of Judge Southwick going to the floor because I really think, based on this letter and on my own discussions, that he is not outside the judicial mainstream.
Now, could I be wrong? Yes, I could be wrong. I’ll admit that. But all we can do is give this our best judgment.
I hope that future nominees of Democratic presidents will be treated in the same way. I think that we have had too much of this, over too many years. And I truly believe that the concerns outlined about Judge Southwick are outweighed by his record of service to the country, by the many cases that he sat on, by his long experience as an appellate judge, and by the temperament that I have come to know from my discussions with him.”
