June 21, 2007

ON THE NOMINATION OF JUDGE LESLIE SOUTHWICK

SENATE JUDICIARY COMMITTEE

            Mr. Chairman, this is the first controversial judicial nomination I will consider as a new member of the Senate Judiciary Committee.  

 

            One of the most solemn obligations for a United States Senator under our Constitution is to vote on a nominee for a federal judgeship.   The President has the power to appoint judges by and with the "advice and consent" of the Senate under Article III, Section 2, Clause 2 of the Constitution.   Only federal judges receive lifetime appointments in our system of government, under Article III, Section 1 of the Constitution.

 

            During my campaign to serve in the Senate, I explained to the people of Maryland the criteria that I would use in evaluating federal judicial nominees.

 

            First, the nominee must have an appreciation for the Constitution and a judicial philosophy that reflects mainstream American values, not narrow ideological interests.

 

            Second, the nominee's background must demonstrate a commitment to protect civil rights and individual liberties, which includes women's rights, worker's rights, and environmental and consumer protections.

 

            Third, the nominee must demonstrate personal integrity, a judicial temperament, and a respect for the rights and responsibilities of each branch of government.

 

            My criteria do not mean that the judge must be a populist.   Instead, I will evaluate whether the judge will place his or her philosophy ahead of the responsibility of the office.   I recall that the First Congress enacted the Judiciary Act of 1789, which requires judges to take a judicial oath before entering into office.   The judge must swear or affirm that "I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States, (so help me God)."

 

            Turning to Leslie Southwick, I am troubled in particular by two opinions he joined as a judge on the Mississippi Court of Appeals for the Fourth District of Mississippi.

 

            In 1998 in the Richmond v. Mississippi Department of Human Services case, Judge Southwick joined an opinion that upheld the reinstatement of a white state social worker.   The social worker had been fired for referring to an African-American co-worker using a racial slur during a meeting with high-level company officials.   After the social worker was fired, she appealed her termination to a state employment board, which ordered her reinstatement.   The hearing officer of the board wrote that the social worker's use of a racial slur "was in effect calling the individual a 'teacher's pet.'"

 

            Four of Judge Southwick's colleagues dissented from this opinion.   Two of the 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 is "inherently offensive and [its] use establishes the intent to offend."

 

            In 2001 in the S.B. v. L.W. case, Judge Southwick joined a majority opinion which upheld a chancellor's decision taking an 8-year-old child away from her bisexual mother and awarded custody of the child to the father (who had never married the mother), in large part because the mother was living with another woman in a "lesbian home."   The language in the majority opinion repeatedly used terms like "homosexual lifestyle" and "lesbian lifestyle."   The dissenting opinion, by contrast, stated that sexual orientation has no bearing on child custody decisions.

 

            Judge Southwick went beyond even the majority opinion and was the only judge to join an additional concurring opinion by Judge Payne.   Judge Payne's concurrence appears to have been written for the sole purpose of underscoring and defending Mississippi's hostility toward gays and lesbians.   The concurrence also 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."   Thus, according to the reasoning adopted by Judge Southwick, one consequence of being gay or lesbian is possibly losing custody of one's own child.

 

            Judge Southwick was repeatedly asked about these opinions and he refused to disavow himself from the highly offensive language and reasoning in these opinions to which he put his name.

 

            During his confirmation hearing before this Committee, Senator Durbin asked Judge Southwick for just one example during his life or career where he took 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 was not a popular position.   Judge Southwick could not provide a single example.

 

            Judge Southwick's answer and failure to recall even a single case of taking an unpopular position for the rights of a minority group is even more troubling given his long history of government service and legal work.   He served as Deputy Assistant Attorney General in the U.S. Department of Justice's Civil Division from 1989 to 1993.   He taught at the Mississippi College of Law for 4 years, served as an Adjunct Professor for 7 years, and just began serving as a Visiting Professor at the law school.   He practiced at a Jackson, Mississippi law firm for 12 years.   He clerked for a judge on the Texas Court of Criminal Appeals for a year, and also clerked for a judge on the U.S. Court of Appeals for the Fifth Circuit.

 

            Mr. Chairman, the U.S. Court of Appeals for the Fifth Circuit (which includes Mississippi, Louisiana, and Texas) presides over the largest percentage of minority residents, 44 percent, of any of the regional circuit courts of appeal in the country outside of Washington, DC.   Mississippi has the highest African-American population, 36 percent, of any state in the country.   Louisiana has the second largest African-American population, 32 percent, of any state in the country.   Given these facts, Mr. Chairman, I am disappointed that none of President Bush's ten nominations to the federal bench to Mississippi or to the Fifth Circuit were African-Americans.   Of the 19 federal judges that now sit on the Fifth Circuit, only one is African-American.   An African-American has never represented Mississippi on the Fifth Circuit.

 

            The President has clearly failed to work with the Senate Judiciary Committee in the process of filling this particular vacancy.   In the 108 th Congress, the President gave Charles Pickering a recess appointment to this Fifth Circuit seat after the Senate had refused to confirm him.   Judge Pickering was forced to retire once his recess appointment expired.   In the 109 th Congress the President nominated Michael Wallace to this seat, who was unanimously rated "not qualified" by a committee of the American Bar Association.   The Senate refused to confirm him.

 

            Federal circuit courts of appeal are the final word on many areas of the law, since the U.S. Supreme Court reviews only a handful of cases each year.   The decisions of these courts have an enormous impact on the lives and rights of millions of Americans.

 

            In this case, Mr. Chairman, it is clear that the President can do much better.   He must do better for the three million citizens of Mississippi, the four million citizens of Louisiana, and the twenty-three millions citizens of Texas.   He must do better for the American people.

 

            And as a United States Senator I will not give a blank check to this President, or any President, to nominate whomever they want for a lifetime judicial appointment.   I will uphold my oath to support the Constitution, under which the Senate is commanded to provide "advice and consent" on Presidential nominations for lifetime judicial appointments.

 

            I will vote against this nomination.