Senate Judiciary Committee chairman Patrick Leahy’s commitment that Fifth Circuit nominee Leslie Southwick would be confirmed by Memorial Day 2007 became meaningless when the Left launched a scurrilous attack on Southwick.
***
Every judicial nominee ought to be treated with decency. But Southwick particularly deserved a healthy dose of respect for his extraordinary military service. He joined the Army Reserve in 1992, when he was 42. In 2003, when he was 53 (and his daughter was only 19), he volunteered to transfer into a line combat unit of the Mississippi National Guard, a unit that, in the words of its commander, was “widely known [as] nearly certain to mobilize for overseas duties in the near future.” Indeed, Southwick served on active duty in Iraq from January 2005 to January 2006, returning home just in time for his 56th birthday.
***
Two days before Southwick’s confirmation hearing in early May 2007, the Human Rights Campaign and People for the American Way sent a joint letter to the Senate Judiciary Committee that charged that two opinions that Southwick joined—out of some 7000 in his judicial career—were “highly disturbing” and “strongly suggest that Southwick may lack … commitment to social justice progress.”
In the first case, Southwick joined an en banc majority decision by the Mississippi court of appeals that, under its “limited scope of review,” affirmed an administrative ruling that an ugly racial slur—the N-word—by a public employee did not justify the sanction of termination of her employment. Far from condoning the racial slur, the opinion that Southwick joined clearly stated that the “unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.”
The opinion did reject “an arbitrary, across-the-board rule” that use of the N-word is always “so inflammatory or disruptive that it warrants the ultimate sanction of loss of employment.” But is that really a rule that the Left would favor? If popular culture is any indication, such a rule would seem likely to have a sharply disparate negative impact on black employees. (I certainly don’t mean to suggest that an African American’s use of the N-word is generally remotely comparable to a white person’s use of that terrible word. My point is that the “across-the-board rule” that the opinion rejected would have treated them as comparable.)
The HRC-PFAW letter claimed that the “ruling that Southwick joined was unanimously reversed by the Supreme Court of Mississippi.” (Emphasis in original.) But, in fact, the majority ruling of the Mississippi supreme court agreed with Southwick’s court that termination was not an appropriate remedy: “Under the particular circumstances of this case, Bonnie Richmond’s use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS.” (The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency “for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.” The ultimate result on remand was that a written reprimand was placed in the employee’s personnel file and she was reinstated with an award of back wages and benefits.)
On the basis of this routine administrative-law ruling, HRC and PFAW viciously insinuated that Southwick is a racist.
In the second case that HRC and PFAW claimed to find so alarming, Southwick’s court applied binding Mississippi supreme-court precedent in ruling that it was proper for the lower court to consider a mother’s lesbianism in making a child-custody determination. HRC and PFAW condemned Southwick for joining a majority opinion that uses the “troubling” terms “homosexual lifestyle” and “lesbian lifestyle.” Somehow they overlooked the fact that President Clinton used the term “homosexual lifestyles” in announcing his “Don’t Ask, Don’t Tell” policy, and that Ruth Bader Ginsburg (among others) joined an opinion (Lawrence v. Texas) that also used the term “homosexual lifestyle.” I would much prefer that no one use the rather vapid term “lifestyle” in any context, but the attack on Southwick was clearly a cheap shot.
There was, in sum, zero substance to the case against Southwick. But the Left’s attack on him caused Leahy to renege on his promise to move his nomination quickly. And in a profile in cowardice, the Democrats on the Judiciary Committee, who knew that their allies were besmirching an outstanding man, were suddenly threatening to use their majority power to prevent his nomination from ever reaching the Senate floor.
***
In awarding Southwick its highest rating of “Well Qualified,” the American Bar Association’s judicial-evaluations committee determined that Southwick met “the very highest standards of integrity, professional competence and judicial temperament,” and it defined judicial temperament to include “freedom from bias.” The ABA committee member who conducted the thorough investigation of Southwick was herself African American and was on the board of trustees of the hard-left Lawyers’ Committee on Civil Rights. Yet somehow the same Democrats who touted ABA ratings as the “gold standard” acquiesced in the Left’s insinuation that Southwick was a bigot.
Southwick in fact had been president of an organization in Jackson, Mississippi—the Jackson Servant Leadership Corps—that among its many activities sponsored a Martin Luther King Day of Service to “promote racial reconciliation” and to address various social problems including racism. In his volunteer work for Habitat for Humanity, he helped build and repair houses in inner-city Jackson.
But the threat to Southwick’s nomination required him to solicit testimonials from those who knew him well. Those who weighed in included two of his former law clerks, both African American. La’Verne Edney, a partner in a Jackson law firm, wrote:
It did not matter the parties’ affiliation, color or stature—what mattered was what the law said and Judge Southwick worked very hard to apply it fairly. Judge Southwick valued my opinions and included me in all the discussions of issues presented for decision. Having worked closely with Judge Southwick, I have no doubt that he is fair [and] impartial.
Patrick Beasley likewise attested:
Lastly, on the issue of fairness to minorities, I speak from personal experience that Leslie Southwick is a good man who has been kind to me for no ulterior reason. I am not from an affluent family and have no political ties. While I graduated in the top third of my law school class, there were many individuals in my class with higher grade point averages and with family “pedigrees” to match. Yet, despite all of typical requirements for the clerkship that I lacked, Judge Southwick gave me an opportunity.… Judge Southwick is a fair man….
The fact that Southwick had at least two black law clerks means that he had at least two more than Ruth Bader Ginsburg had at the time of her nomination to the Supreme Court—and at least one more than she had in her four decades of judicial service.
Former Mississippi supreme court justice James L. Robertson, a liberal Democrat who had known Southwick for two decades, praised him across the board. He specifically averred that “there is not a hint of racism in Judge Southwick’s being” and that he was “certain” that Southwick’s two longtime African-American judicial colleagues “would be the first to tell you this” if they were not prohibited by state judicial rules from providing such endorsements.
But all of this and more mattered not a whit to Southwick’s attackers, as they were confident that stigmatizing a Republican white male from the South as a backwards bigot would give Senate Democrats all the political cover they needed.
***
Southwick needed to win over at least one Democrat on the Judiciary Committee. It would take him nearly three months of effort to do so.