Bush's latest controversial judicial nominee.

The law, lawyers, and the court.
June 4 2007 3:25 PM

Headed Southwick?

The case against Bush's latest controversial judicial nominee.

Harry Reid. Click image to expand.
U.S. Senate Majority Leader Harry Reid

As a judge on the Mississippi Court of Appeals for 12 years, Leslie Southwick participated in more than 7,000 cases. Now he is President Bush's nominee for a long-vacant seat on the Fifth Circuit, one of the federal appeals courts. At Southwick's confirmation hearing, Sen. Dick Durbin, D-Ill., asked him to give an example of an unpopular decision he'd made in favor of somebody downtrodden—a poor person, or a member of a minority group, or someone who'd simply turned to the courts for help. Judge Southwick couldn't name a single one.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

The question might sound like a bit of a stunt. But other data show that Judge Southwick's answer fits with his larger record. He has a pattern of voting against workers and the injured and in favor of corporations. According to the advocacy group Alliance for Justice, Southwick voted "against the injured party and in favor of business interests" in 160 of 180 cases that gave rise to a dissent and that involved employment law and injury-based suits for damages. When one judge on a panel dissents in a case, there's an argument it could come out either way, which makes these cases a good measure of how a judge thinks when he's got some legal leeway. In such cases, Judge Southwick almost never favors the rights of workers or people who've suffered discrimination or been harmed by a shoddy product.

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If President Bush had a Republican Senate behind him, Judge Southwick would no doubt sail through. He's the president's third try to fill a seat that's been vacant since 2003: The first nominee, Charles Pickering, went down in flames in 2004; the second one, Michael Wallace, was withdrawn. But Democrats control the judiciary committee, which will vote on Southwick's nomination Thursday. So, why is his confirmation hovering between likely and possible?

The Mississippi seats on the Fifth Circuit are the province of home state Sen. Trent Lott, who is good at getting his way. Lott made his case for Southwick to Senate Minority Leader Mitch McConnell, R-Ky., who took it to Majority Leader Harry Reid, D-Nev. On the Senate floor, Reid said, "Sen. McConnell and I believe that the process for considering judicial nominees has become too partisan over the years" and "I hope people understand the relationship Senator McConnell and I have, as to how the Senate runs, is extremely important." He hasn't promised McConnell a win on Southwick, but he added, "I would hope this hearing goes well."

The idea is apparently that if the Republicans get Southwick, they'll remember when the next Democratic president asks their support for his judicial nominees. Maybe this is plausible; maybe it's not. But more suspect is the notion that by dinging Southwick, the Democrats would be escalating the warfare over judges, because he's harder to oppose than other nominees they've refused to confirm. Republicans will surely cry escalation, but the Democrats have plenty to say in return.

To sink a judicial nominee, you need a sound bite, for better or worse. And the liberal advocacy groups, joined by the Congressional Black Caucus and Sen. Barack Obama, D-Ill., in opposing Southwick, have a few. When a state social worker called a co-worker a "good ol' nigger" in 1994, she was fired. She appealed the firing to the state Employee Appeals Board, which reinstated her with back pay. The state hearing officer said, "I understand that the term nigger is somewhat derogatory. … I think that in this context, I just don't find it was racial discrimination." Judge Southwick joined a 5-4 decision by the Mississippi Appeals Court to uphold the employee's reinstatement. That ruling was reversed, on technical grounds, by the Mississippi Supreme Court.

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