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Headed Southwick?The case against Bush's latest controversial judicial nominee.

By Emily Bazelon
Posted Monday, June 4, 2007, at 3:25 PM ET

(Continued from page 1)

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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Emily Bazelon is a Slate senior editor.
Photograph of U.S. Senate Majority Leader Harry Reid by Tim Sloan/AFP/Getty Images. Photograph of Leslie Southwick on Slate's home page by Scott J. Ferrell/Congressional Quarterly.
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Remarks from the Fray:

By nudging and winking Leslie Southwick toward the bench, Harry Reid is abdicating a legitimate moderating role for Democrats in judicial appointments.

What I find a little more annoying is that Reid's gentleman's agreement with Mitch McConnell, after hurting several groups the Democrats are supposedly protecting, will almost certainly be forgotten when another vacancy opens on the Supreme court. Because, of course, it's OK to politicize judicial appointments when you're under a national media spotlight.

To take partisanship out of 'advise and consent' may be a wonderful thing, but at least propose it explicitly, and promise to apply it with consistency. Reid's back-to-the-future approach to judicial nominees looks less principled than weak.

--yepesh

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