Senate Scrap Looms Over Judicial Nominee

By Evan Moore | July 7, 2008 | 8:32pm EDT

( - Twenty years after President Ronald Reagan's failed nomination of Judge Robert Bork to the Supreme Court, another fight is brewing in the U.S. Senate over a judicial nominee - this time, over Leslie Southwick, a nominee to the Fifth Circuit Court of Appeals.

Southwick's nomination is to a seat - previously held by Judge Charles Pickering - that has been declared an "emergency vacancy." Pickering faced opposition from Senate Democrats and was recess-appointed by Bush in 2004. He withheld his name for consideration for another attempt at confirmation and retired from the bench when his term expired.

The American Bar Association has unanimously ranked Southwick as "well-qualified" for the Court of Appeals.

But as Cybercast News Service reported earlier, a number of liberal groups oppose Southwick, accusing him of bringing conservative views into his court rulings.

The controversy stems from two cases Southwick became involved with, one regarding the use of a racial slur in a workplace and the other dealing with the parental rights of homosexuals.

Though Southwick did not write the opinions, in a May 30 letter to the members of the Senate Judiciary Committee, People for the American Way President Ralph Neas stated that "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."

Neas added 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."

In Richmond vs. Missouri Department of Human Services, the Mississippi Appellate Court Southwick ruled that a white state employee should not be terminated for derogatorily referring to an African-American co-worker.

The racial slur was made outside of the recipient's presence, she later made an apology that was accepted, and the workplace was not significantly disrupted. The Mississippi Supreme Court concurred with the result of the decision of Southwick's courts but found that more detailed reasoning for its conclusions was required.

Neas said that Southwick's decision "effectively ratified a hearing officer's opinion that the slur was only 'somewhat derogatory' and was in effect calling the individual a 'teacher's pet.'"

In his hearing before the Senate Judiciary Committee, Southwick called the term "always offensive," "inherently and highly derogatory,' and that there was "no worse word."

The second case, S.B. vs. L.W., Neas says that the Mississippi Court of Appeals repeatedly used "gratuitously anti-gay" terminology in describing lesbians. The court awarded custody of a child to its biological father rather than its mother, who was living with a woman in a homosexual relationship.

The term in question, "homosexual lifestyle," has been used in previous decisions ruled by both the Missouri and U.S. Supreme Courts. The court also considered a variety of factors in awarding custody to the father, including the quality of the father's job and residence, his income and his roots in the community.

PFAW did not return requests for further comment.

Last Tuesday, Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee, took to the floor to urge senators to move forward with the nomination. Specter said Southwick had "an impeccable record" and called him "a mild-mannered professional who is a confident man" and "a solid lawyer" who "has been a solid judge."

But at the Judiciary Committee business meeting two days later, Chairman Patrick Leahy (D.-Vt.) lambasted his Republican colleagues for backing Southwick.

"This is not a partisan fight that needs to be waged," Leahy said. "We can work together to fill this Fifth Circuit vacancy. I hope the president and Senate Republicans will work with us."

No vote was held on Southwick at Thursday's meeting.

'Reform the process'

Andrew Hyman, who runs, a conservative blog devoted to advancing the president's judicial nominees, told Cybercast News Service that Southwick fits the mold of previous Bush appointees, who "have generally had impeccable professional credentials, good judicial temperament and a judicially conservative philosophy that will cause them to avoid legislating from the bench."

Hyman said he believed Bush's successor would have an opportunity to remake the federal judiciary and that delays in the Senate are an attempt to "save nominations for the next president."

"But," he added, "the current delays are also part of the ongoing strategy of people like [New York Democratic Sen.] Chuck Schumer to use false charges of wrongdoing in order to demand liberal judges he would nominate if he were president."

"It never ceases to amaze me how a senator can swear to uphold the Constitution and then behave as if he were entitled to grab the nomination power from the president. I guess that's part of the 'living Constitution' that always seems to evolve leftward," Hyman said.

He called for reform of the confirmation process.

"A federal statute or Senate rule change could ensure that judicial nominations will be processed promptly," Hyman said.

"Of course, powerful senators do not want to give up the power that comes with obstruction, but legislation to streamline the confirmation process would be a big winner with the public and would be more in line with what the framers intended," he added.

The last time the Senate was embroiled in a full-fledged fight over nominations to the federal judiciary was in 2005.

Then, a bipartisan "Gang of 14" agreed to end the filibustering of some of President Bush's nominees - including Judges Bill Pryor of the Eleventh Circuit Court of Appeals, Priscilla Owen of the Fifth Circuit Court of Appeals and Janice Rogers Brown of the D.C. Circuit.

Months later, following the resignation of Supreme Court Associate Justice Sandra Day O'Connor and the death of Chief Justice Bill Rehnquist, Chief Justice John Roberts and Justice Sam Alito were elevated after contentious confirmation hearings.

Sources on Capitol Hill indicate Senate Minority Leader Mitch McConnell (R-Ky.) is keen on confirming as many of President Bush's judicial nominees as possible. The average number of appellate court confirmations over the last two years of recent presidential terms is 17.

McConnell is eager to meet this average during the 110th Congress.

So far, only three Court of Appeals nominees have been confirmed. On Tuesday, the president submitted an additional four nominations to the federal appellate courts.

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