October 24, 2007

STATEMENT OF SENATOR BENJAMIN L. CARDIN ON THE NOMINATION OF JUDGE LESLIE SOUTHWICK FOR THE 5TH CIRCUT COURT OF APPEALS

This is a unique body, the Senate of the United States. One of our most important responsibilities is the advice and consent on Presidential appointments on the confirmation of Federal judges. The Constitution envisions that we will use independent judgment in order to make these decisions. Article III, section 2, clause 2 of the Constitution gives us the power to confirm Federal judges.

I know all of my colleagues know these are lifetime appointments, so this is our one chance in order to evaluate those who will serve as Federal judges. We are talking about the U.S. Court of Appeals. For most Federal cases, this will be the final decision on a case that is brought in the Federal court. Very few in percentages of the cases reach the Supreme Court of the United States. So the Court of Appeals is responsible for much of our laws in this country as far as the final judicial determination.

When I sought to become a Member of this body, I went over with the people of Maryland the standards I would use in trying to decide whether to vote to confirm a judge. I talked about judicial temperament and experience, but I also talked about a standard that I think is very important, which is a judge's or potential judge's passion for the Constitution of this country in order to protect every individual. I think it is important that we take a look at that, particularly when we talk about an individual who will serve on the U.S. Court of Appeals.

I have sat in the confirmation hearings. I am a member of the Judiciary Committee. I had a chance to listen to Judge Southwick. I had a chance to listen to the questions that were posed back and forth. I must tell my colleagues I cannot support this confirmation. I will vote against it, and I would like to give the reasons why.

Senator Specter talked about some of the opinions that Judge Southwick participated in or some of his rulings, and I think that is what we should be looking at. For Judge Southwick, we do have an idea about his passion for the Constitution and what his priorities will be by looking at the type of cases he ruled on, the opinions he joined, and the opinions he wrote. So let me talk about the two opinions Senator Specter raises, because I think they are important opinions in order to get some insight as to this judge's passion for the Constitution.

The 1998 case of Richmond v. Mississippi Department of Human Services was an important case. It was very offensive to not just the minority community but the entire community. The racial term that was used should never be used, as Senator Leahy said, in the workplace or anyplace else. The dissent of that opinion, of that decision, got it right, where it said that the racial epithet is inherently offensive and its use establishes the intent to offend. Unfortunately, that was the minority opinion in that court. On appeal it was overturned, but Judge Southwick joined the majority. The rationale in the majority opinion I think is important, because it speaks to what Judge Southwick used to reach his conclusions. In that opinion he said the absence of evidence of a near race riot, the remark is too inconsequential to serve as a basis of dismissal.

I find that very offensive. I think we do have to be held accountable to where we allow our name to be added. Fortunately, as I said, that was corrected, but it took an appellate court to do that.

In 2001, we have S.B. v. L.W. where a 12-year-old child is taken away from her mother. It was done because she was a lesbian. The language in the opinion is very offensive. It talks about a homosexual lifestyle, words that I think we all know bring out bigotry in our society. But Judge Southwick went further in that case. He joined a concurring opinion that said your sexual orientation is a matter of choice and any adult may choose any activity in which to engage. That person is not thereby relieved of the consequences of his or her choice.

No wonder Judge Southwick is being challenged by many respected national groups. Upon questioning within our committee on confirmation, I didn't get a sense that there was a retraction by Judge Southwick of these decisions. He stuck by the decisions.

At the confirmation hearing, Senator Durbin asked him a pretty simple question. He asked him a question about whether during his life or career, he ever took an unpopular point of view on behalf of those who were powerless or vulnerable and needed someone to stand up for their rights when it was not a popular position. That, to me, is a softball question: When did you stand up for someone else's rights? Judge Southwick couldn't think of a single example throughout his entire career.

So there is no wonder that there is concern about whether this potential judge on the court of appeals will protect all of our rights as the cases come before him and why there is so much concern about his confirmation.

But I want to go on to another issue that Senator Leahy raised, and that is the issue of diversity. Diversity is very important. We expect all of our citizens will live according to the rule of law and will have confidence that the laws we make and the Court's rulings on those laws will be fair to all communities, so they have a right to expect that there will be equal access to participation in all branches of Government. Looking at the record in the Fifth Circuit, there is reason for concern. The Fifth Circuit is Mississippi, Louisiana, and Texas--the highest percentage of minority population in the country of any circuit outside of the District of Columbia--44 percent minority. Of the 10 nominees President Bush has submitted to the Federal bench from Mississippi and the Fifth Circuit--10--none have been African American. Mississippi has the largest percentage of African Americans of any State in the Nation: 36 percent. Of the 19 Federal judges on the Fifth Circuit, only one is African American. These are important issues to the people of that circuit and to the people of this country.

Mr. President, I am going to quote very briefly from the letter from the Bourne Bar Association where it says:

A representative democracy is a must in a free society, and as such the residents of the State of Mississippi, Texas, and Louisiana are deserving of a Federal judiciary that reflects the composition of their respective citizenry.

Ten nominees from this area; none African American.

The National Organization for Women states:

"Judge Southwick has a disturbing record and an appalling lack of sensitivity on women's rights, racial justice, and discrimination based on sexual orientation."

The Jewish Alliance for Law and Social Action:

"Judge Southwick has demonstrated his disdain for equal rights and equal protection under the law."

So I am not convinced Judge Southwick is the best that we can find for the court of appeals. I am not going to give the President a blank check, and I will vote against the confirmation of Judge Southwick.