Shortsighted on Judges

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats' treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president's liberal nominees, no matter how well qualified.

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If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

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 gantlet that the confirmation process has become.

Of course, liberal groups and Senate Democrats don't admit to opposing Southwick simply for being conservative. But their detailed complaints boil down to just that, as do scurrilous insinuations that Southwick is a bigot—insinuations denounced by, among others, his former law clerk La'Verne Edney, an African-American. "It is unfortunate," she has written, that "there are some that have made him the chosen sacrifice to promote their agenda." Some astute Democratic thinkers privately agree.

The far-from-conservative American Bar Association Standing Committee on the Federal Judiciary unanimously found Southwick, 57, to be "well qualified" (the highest rating) for the 5th Circuit. He served on Mississippi's intermediate appellate court from 1995 to 2006, was an adjunct professor at the Mississippi College School of Law for a decade, was in private law practice for 12 years, served in the Justice Department from 1989 to 1993 under the first President Bush, and has done volunteer work for Habitat for Humanity. The Mississippi State Bar chose Southwick in 2004 for its annual Judicial Excellence Award, as "a leader in advancing the quality and efficiency of justice, and a person of high ideals, character, and integrity." He wins high praise from Democrats, African-Americans, and others who know him.

Southwick also wears a distinctive badge of courageous service to his country. After joining the Army Reserve in 1992, at age 42, he volunteered in 2003 to transfer into a Mississippi National Guard combat unit that would soon be sent overseas.

He was on active duty in Iraq (and on leave from his judgeship) from August 2004 to January 2006.

So it was not surprising that Southwick's nomination to a federal District Court seat won unanimous, bipartisan Senate Judiciary Committee approval late last year. After the 109th Congress ended without a floor vote on his nomination, President Bush named Southwick to fill a vacancy on the 5th Circuit. Senate Majority Leader Harry Reid and Judiciary Committee Chairman Patrick Leahy told Republican colleagues that they expected committee approval and a floor vote within a few months.

Then began the attacks by liberal interest groups, and the same Judiciary Committee Democrats who had voted to confirm Southwick last year got cold feet. People for the American Way and the Human Rights Campaign led the charge. Their joint May 8 letter to the Judiciary Committee accused Southwick of "highly disturbing" votes and "a problematic record on civil rights" lacking the requisite "commitment to social justice progress." The Congressional Black Caucus objected especially to the nominee's whiteness, as to that of Bush's nine other judicial nominees in 37 percent black Mississippi. The New York Times denounced Southwick for "a disturbing history of insensitivity to blacks and other minority groups."

Southwick's critics could find very little in any of his 985 judicial opinions to justify these assessments. So the May 8 letter focused on two opinions by other judges that Southwick joined. But while those decisions "might have been articulated differently, might have been more sensitive, [they] certainly are not disqualifiers." So said Sen. Arlen Specter of Pennsylvania, the Judiciary Committee's senior Republican. The moderate Specter has often bucked his party in the judicial wars. But he angrily deplores what Democrats are doing to Southwick.

The first case was a 5-4 ruling in 1998 that a state administrative board had acted within its broad discretion when it reinstated without discipline a white state social worker named Bonnie Richmond, who had been fired for calling a black co-worker (who was not present) "a good ol' nigger" at an employment-related conference.

The opinion that Southwick joined deplored Richmond's use of an "inflammatory or derogatory term when referring to or directly addressing a co-worker." But it also noted that Richmond had been apologetic, and that the black co-worker, although angry about the slur, testified that the remark had not caused "any real big problem." The majority concluded that for Richmond, whose years of service had been "satisfactory in all other respects," this single use of an ugly racial slur was not a firing offense.

The Mississippi Supreme Court agreed, but unanimously sent the case back to the administrative board to consider imposing a lesser penalty. Richmond ended up with a written reprimand.

The second case was an 8-2 ruling in 2001 upholding a chancellor's decision to take custody of an 8-year-old girl from her bisexual mother and award custody to her father. Among the grounds cited by the court were that the mother planned to move to another city and that the heterosexual father's "average American home" was preferable to the mother's "lesbian home." Southwick also joined a concurrence stressing that the Mississippi Legislature had disfavored "homosexuals in domestic situations."

Liberal groups complained that the opinions Southwick joined had used "troubling" words such as "homosexuals" and "homosexual lifestyle" instead of "gay." Never mind that "homosexual lifestyle" was used both by President Clinton (in 1993) and by the Supreme Court (in 2003) in its biggest pro-gay-rights opinion, which all of the four more liberal justices joined.

It's fair to infer from the 2001 decision that Southwick seems less committed to equal rights for gay people than many (including me) would like. But it hardly shows him to be a homophobe. Indeed, he was deferring to a state legislative policy that was consistent with existing Supreme Court precedent.

These were the most troubling things that the two liberal groups could find after combing through the 6,000-odd judicial decisions in which Southwick has participated. Other groups have stressed that the judge's votes in a relatively high percentage of cases favored "business and insurance interests, at the expense of workers, consumers, and other victims." So said the Alliance for Justice's detailed assessment—one with more than a passing resemblance to the group's criticisms of countless conservative nominees.

Yes, Virginia, Republican judicial nominees tend to side with businesses and other defendants in personal injury and employment lawsuits, just as Democratic nominees tend to be pro-plaintiff and pro-trial-lawyer. But that hardly puts Southwick outside the mainstream of legal thought. Rather, he is a target of opportunity for Democrats who hope to keep the 5th Circuit seat open until a Democratic president can appoint a liberal.

It remains to be seen whether this presages a broader Democratic effort to stall Appeals Court nominees (with three confirmed so far this year) that would be even more blatant than the Republican effort during President Clinton's last two years (when 15 were confirmed).

But as Senate Republican Leader Mitch McConnell has said, "It's important for our friends on the other side of the aisle to remember that against the best efforts of people like me, they might be appointing judges 18 months from now. And these lessons tend to be remembered, particularly in the short term.... It's not too late to keep the Circuit judge situation from spiraling downward. And, I think, confirming Judge Southwick would be a good place to start."

Otherwise, Republican senators will take their revenge on well-qualified liberal nominees during the next Democratic administration. The confirmation process will continue to become an ever-uglier ordeal. And sooner or later, the best and brightest lawyers just won't put themselves through it.