Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Leslie Southwick To The Fifth Circuit
Executive Business Meeting 
August 2, 2007

Today I have put back on the Committee’s agenda the controversial nomination of Leslie Southwick to the United States Circuit Court of Appeals for the Fifth Circuit.  As I have noted previously, I took the Southwick nomination off the agenda at the request of Republican Senators.   I refused to ambush Mr. Southwick the way Republicans ambushed Ronnie White in 1999 when they voted him down.  Instead, I alerted the White House and Senate Republicans to the opposition and have tried to be constructive in consulting with the White House.  All of my good faith efforts in that regard have been rejected. 

I had been waiting patiently, but in vain, to hear back from interested Republican Senators and, in particular, those who requested delay in the consideration of Mr. Southwick’s nomination.  Instead, several Republican Senators have complained publicly about the delay that they themselves requested. 

This nomination has engendered significant opposition.  Those opposing this nomination include: the Leadership Conference on Civil Rights, the Human Rights Campaign, the Mississippi State Conference of the NAACP, the NAACP Legal Defense Fund, Lambda Legal, the National Employment Lawyers Association, the Magnolia Bar Association, the National Organization of Women, the National Urban League, the AFL-CIO, the Congressional Black Caucus, and many more.  A number of other Members of this Committee have shared with me their concerns and doubts about this nomination, as well.  

I have given careful consideration to Mr. Southwick’s record.  With respect to the Richmond case, which has been so much discussed, I note that Judge Southwick provided the deciding vote.  In my view, the Mississippi Supreme Court did the right thing in reversing that decision and I commend them.  There is no place for “the n word” in the workplace or in use by a supervisor to and about an employee.  None.

If, as Mr. Southwick now says, his view of the Richmond case was the narrow, technical, legalistic one that he says justifies his providing the deciding vote to the majority opinion, he could have said so back then in a separate opinion.  He could have noted that he felt such use of  “the n word” was inexcusable, but that he felt constrained by his limited role on appeal to apply a standard of review that compelled him to reverse Judge Graves of the Circuit Court and reaffirm the Employee Appeals Board’s reinstatement of the offending supervisor with back pay.  That is not what he did, however.  In the face of a cogent dissent, he provided the deciding vote to uphold the decision excusing that remark.

Likewise in the case of  S.B. v. L.W, my concern is not just that Judge Southwick joined the majority opinion but that he went out of his way to sign on to a concurring opinion that suggested that sexual orientation is an individual “choice” and an individual must accept that losing the right of custody over one’s child is one of the “consequences flowing from the free exercise of such choice.”

I also have concerns about his approach in some cases involving allegations of race discrimination in jury selection, such as his opinion in a 1997 case, Brock v. Mississippi upholding a criminal conviction where the prosecution struck an African American juror, purportedly because he lived in a high crime area.  The dissenting judge criticized Judge Southwick’s opinion for accepting a strike which “on its face appears geared toward a racially identifiable group.”  In another case involving jury discrimination, Bumphis v. State (1996), three judges criticized Judge Southwick’s majority opinion for “establishing one level of obligation for the state, and a higher one for defendants on an identical issue.” 

His legal writing also points to a narrow view of the role of the federal courts in upholding protections against race discrimination.  In one article, he found “compelling” a statement of a Mississippi Supreme Court Justice that “the judiciary is not the avenue to effectuate the removal of the Confederate battle flag from public property.”  

I have questions whether he would be balanced in protecting the rights of employees given the overwhelming number of cases — 160 out of 180 written decisions -- in which he has offered a narrow interpretation of the law to favor protecting business and corporate interests at the expense of the rights of workers and consumers.  In one 1999 case, Dubard v. Biloxi, H.M.A., Judge Southwick authored a dissent expressing the virtues of a legal doctrine that would allow employers to fire employees for any reason, even though such an analysis was not relevant in the case before him.  My concerns about his bias are heightened by a law review article he wrote characterizing litigation against tobacco companies led by former Mississippi Attorney General Michael Moore as destabilizing and posing separation of powers concerns.

I have thought long and hard about this nomination and this is not a decision I come to easily.  I take seriously the strong support of Senator Cochran and Senator Lott and I have expressed my concerns directly to them as well as to the White House.  I also take seriously Mr. Southwick’s answers to my questions and to those of others in connection with his hearing.  I was glad to see that he acknowledged the offensiveness of the racial epithet used in the Richmond case and also that human rights law has evolved since 2001 when he joined the decision in the child custody case. 

Still, I share the deep disappointment of members of the African-American and civil rights communities that this Administration continues to renege on a reported commitment to appoint an African American to the Mississippi federal bench.  In more than six years, President Bush has failed to do so.  He has appointed only 20 African-American judges to the federal bench, compared to 52 African-American judges appointed by President Clinton in his first six years in office.

With an ever-growing number of outstanding African-American lawyers in Mississippi, the state with the highest percentage of African Americans in the country, it is not as if there is a dearth of qualified candidates.  Nonetheless, President Bush has now submitted 10 nominees to the federal bench in Mississippi, seven at the district level and three to the United States Court of Appeals for the Fifth Circuit, and none of these nominees has been African-American.  Our nation’s diversity is one of its greatest strengths, and I am disappointed that the President has missed yet another opportunity to reflect this great strength in our federal courts.  This process begins with the President, and he has the ability to unite the nation and the Senate in the choices he makes, or to divide us.  This is a divisive choice.

When viewed against his record on the bench, the importance of this seat on the Fifth Circuit, and the troubling lack of diversity on that court, I am not convinced that he is the right nominee for this vacancy at this time.  I shall vote no.

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