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since 2003: The first nominee, Charles Pickering, went down in flames in 2004; the second one, Michael Wallace, was withdrawn.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.

Southwick has also waxed fondly about employment at will—the rule that allows employees to be fired for any reason—comparing it to democracy as a system that's not perfect "but just a better one than everything else that has ever been suggested." And he joined a 2001 opinion that called for judges to consider "the homosexual lifestyle" in deciding child-custody cases. None of these cases taken alone would be grounds for voting against him. But taken together, along with his pro-business record, they suggest a judge who is predisposed against the interests of several groups that Democrats are supposed to care about.

Southwick's supporters point out that the American Bar Association has rated Southwick as well-qualified. But both parties in the past have rejected nominees despite that not-so-meaningful endorsement. And it should matter, too, that the vacancy Southwick has been tapped to fill is on the Fifth Circuit, where 11 of  the 15 sitting judges are Republican appointees. Given Southwick's history as a state appellate judge—not just the sound bites, but the overall pattern—why should the Democrats further imbalance an imbalanced federal court by making him into a peace offering?

The larger question about the Senate's role in judicial nominations, of course, is also the more difficult one. Reid is right that there's such a thing as too partisan; the Republicans set that example during the Clinton administration, and the Democrats don't need to repeat it in a game of tit-for-tat. But as Reid himself points out, the Democrats recently confirmed three of Bush's circuit-court nominees. That's some evidence of good faith.

Southwick, on the other hand, looks like evidence that Bush and Lott are reverting to trying to ram through extremely conservative nominees.

When the Republicans controlled the Senate, that was the president's prerogative, and he had something of a mandate from the voters to tilt the courts in his direction. There's no reason the bench should be composed entirely of moderates. But when the opposing party gains control of Congress, that should signal the president—any president—to move closer to the middle. If Bush appears to forget that, then it's up to the Democrats on the judiciary committee to remind him.

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