Yesterday Senator Arlen Specter (R-PA), the ranking
member of the Senate Judiciary Committee, took to the Senate floor to defend
the nomination of Judge Leslie Southwick to be an appellate judge on the 5th
Circuit Court. Southwick is an excellent
choice whom radical liberal groups have been seeking to vilify without
cause. In this age of judicial activism
it is crucial that qualified, originalist nominees like Southwick make it to
the federal bench. Below is an excerpt
of Senator Specter’s statements in defense of Southwick, followed by his full
statement.
“This man has an impeccable
record, an outstanding record, with 985 authored opinions. The two
opinions that have been called into question are opinions which he didn't
write, but merely joined, on matters which -- while they might have been
articulated differently, might have been more sensitive -- certainly are not
disqualifiers. This man ought to be confirmed.”
Below is a copy of Senator Specter’s floor
statement:
Mr. President, as stated a moment ago, I have sought
recognition to speak about the nomination of a Mississippi appellate court
judge, Leslie H. Southwick, to be Federal Court for the Fifth Circuit Court of
Appeals. I have asked for this time because Judge Southwick has been
before the Judiciary Committee on several occasions and, because there is not
much known about his record, there have been certain objections raised.
As I have talked to our colleagues on both sides of the aisle, when they hear
about his record, they are surprised that he is not moving through
expeditiously. I thought it would be important to take a few moments to
acquaint Senators with his record and, beyond that, to acquaint the public with
the pending nomination.
This Chamber has seen some very contentious moments, going
back over the past two decades, of partisanship on judicial nominations,
extensive filibusters in 2005, the holding up on judges of both sides, with
Republicans held up by a Democratic-controlled Senate and Democratic president,
and the same thing with the Democratic President, President Clinton, held up by
a Republican Senate. I moved and supported President Clinton's nominees
when they were qualified, and broke ranks. It has seemed to me that we ought
to be looking at the merits of these nominees and not engaging in partisanship
to block nominations when courts such as the Fifth Circuit are urgently in need
of additional judicial manpower.
Judge Southwick has a very outstanding record, which I
will detail briefly, and I want to deal with the objections which have been
raised to him, which I do not think are substantial -- not disqualifiers by any
sense. Judge Southwick is 57 years old -- a perfect age to come to the
court of appeals, considering his background: a cum laude graduate of Rice University
in 1972, a law degree from the University
of Texas. He served
as a law clerk on the Texas Court of Criminal Appeals, then he was a law clerk
to Judge Charles Clark on the Fifth Circuit. So he has had experience in
a clerk's capacity on the court to which he has now been nominated. He
practiced law for 12 years, with a distinguished practice first as an associate
and then as a partner. He was Deputy Assistant Attorney General for the
United States Department of Justice for 4 years.
He is an adjunct professor at the Mississippi School of
Law. He has been a volunteer for Habitat for Humanity doing community
service. He was the recipient of the Judicial Excellence Award from the
Mississippi State Bar and was rated by the American Bar Association as
unanimously well qualified.
When he was 42 years old, in 1992, he obtained an age
waiver in order to join the Army Reserve. Then, in 2002, he volunteered,
at the age of 53, to transfer to a line combat unit, and he served on
forward-operating bases near Najaf in Iraq.
Major General Harold Cross characterized Judge Southwick's
volunteering for duty in Iraq
as follows: “This was a courageous move; as it was widely known at the time
that the 155th was nearly certain to mobilize for overseas duties in the near
future.”
He is a man with an outstanding background and a
courageous man who stepped forward at an advanced age to volunteer for service
in Iraq,
something that doesn't happen very often. It is a very rare occurrence.
On the Mississippi Court of Appeals, Judge Southwick has
participated in between 6,000 and 7,000 cases -- it is hard to be precise
because many of them are unreported. He has written 985 opinions himself
in the course of some 12 years.
The objections to Judge Southwick have focused on two
cases. I wish to discuss very briefly these cases because I think, on
their face, they show there is not any reason this man should not be
confirmed. I discussed these cases with him. I met with him at
length and talked with him about his judicial career and his service in Iraq. He
is a mild-mannered professional who is a confident man -- not flamboyant and
not overstated. We talked about legal issues. He is a solid lawyer
and has been a solid judge.
But the objections to him have focused on two cases.
In one, a case captioned Richmond
v. Mississippi Department of Human Services, the case involved a State social
worker, Ms. Bonnie Richmond, who used, admittedly, an outrageous racial
slur. The administrative board reviewing the matter to determine whether
she should be dismissed or censured made the determination that she should not
be dismissed based on the evidence before it: the racial slur was an isolated
comment made outside the target's presence, it was followed by an apology which
was accepted, and it did not result in significant disruption of the
workplace. Under these circumstances, the review board concluded the
dismissal of a public employee was not warranted.
Under Mississippi
law, the board's ruling could be reversed only if it was arbitrary and
capricious. That is the general standard for reversing an administrative
decision. The Mississippi Court of Appeals applied that standard, which
is deferential to the fact finder, to determine if there was sufficient
evidence to support it, and the court decided that there was sufficient
evidence.
This is a case where Judge Southwick did not write the
opinion, only concurred in the opinion. The Mississippi Supreme Court,
while finding that the administrative board needed to give more detailed
reasons for its conclusions, nonetheless concluded that dismissal was not
warranted -- agreeing with the appellate court on which Judge Southwick sat.
In the hearing before the Judiciary Committee, Judge
Southwick was asked about the case, and he said the slur was "always
offensive," "inherently and highly derogatory," and said there
was "no worse word."
In the face of his overwhelmingly good record, how can a
man be denied confirmation on the basis of that situation?
There was another case about which Judge Southwick has
been questioned, S.B. v. L.W., a custody case where the chancellor awarded the
father custody of a child instead of the child's bisexual mother.
There were numerous factors leading to the award for the
father, all of which were considered and weighed in favor of the father --
steady job, higher income, owner of a large residence, and roots in the
community.
The objection came because the majority and concurring
opinions -- again, not Judge Southwick's opinions, but ones that he joined --
made reference to "homosexual lifestyle." But, that is the same
phrase used in Mississippi Supreme Court precedent. It is also a phrase
which was used by the majority in the Lawrence
case, Lawrence v. Texas, and has been used by many people,
including President Clinton. So, there is hardly a basis for objecting to
that kind of a reference, it seems to me.
My record on civil rights and on rights for people
regardless of lifestyle is well accepted. I can't see how this man can be
pilloried on this basis. Moreover, he wrote an opinion, in a case called
Hughey v. State of Mississippi,
where he affirmed the trial court's decision to disallowed cross-examination as
to the victim's sexual preference, saying he recognized the victim was
homosexual, but that was not relevant to the defense and that such a line of
inquiry would produce undue prejudice.
If there is a case where lifestyle is not involved, the
trial court would not allow a party to try to smear someone with a reference to
his or her being a homosexual. Judge Southwick affirmed it, as anybody
would. But it shows his own sensitivity on this matter.
There are a couple of comments by some individuals who are
very supportive –- one a woman named La'Verne Edney, a distinguished
African-American lawyer who is a partner in a prominent Jackson, Mississippi
firm. She had some very complimentary things to say about Judge
Southwick. He hired her as a clerk at a time when few others would hire a
young African-American woman. Similarly, a practicing attorney named
Patrick Beasley, also African American, wrote about Judge Southwick's
sensitivity on racial matters. Because of limited time, I ask unanimous
consent their statements be printed in the Record without my going into them.
[Insert Edney and Beasley letters]
I would ask unanimous consent that a fuller text be
included, but in conclusion, in the last 3 1/2 minutes I have, I wish to point
out what has happened in this matter.
Chairman Leahy advised me this nomination would go through
the Judiciary Committee on a voice vote. Then, when that effort was made,
Senator Feingold objected and any member of the Judiciary Committee has the
right to hold over a nominee for 1 week. So, it did not go through on a
voice vote, notwithstanding the fact that Senator Leahy, the chairman, said
that was his plan.
Senator McConnell has advised that the majority leader,
Senator Reid, had said the nomination would be confirmed before the Memorial
Day recess, which is some time ago now. So, this nomination was on the
brink of confirmation, according to the chairman's statement that it would go
through committee on a voice vote. He didn't expect someone to raise an
objection, and he was powerless to move it on a voice vote once an objection
was raised, but that was his expectation and mine.
And, as I said, the majority leader told the Republican
leader there would be a confirmation before the Memorial Day recess.
It is my hope we will not allow partisanship to once again
grip this body. This Senate, under Republican control, wouldn't give
hearings to President Clinton's nominees and wouldn't bring them up for floor
votes. I objected to that, bucking my party, crossing party lines, and
voting for Clinton
nominees.
We had protracted filibusters in 2004 and threats of the
Constitutional –- or “nuclear” –- option. I hope we do not go back to
that. This body, as we all know, works on unanimous consent. Any
Senator can raise an objection to dispensing with a reading of an amendment or
a reading of the record, as we saw during the immigration debate, and can tie
up this Senate endlessly if someone wants to impede the work of the
Senate. It is my hope we will not descend to that.
We have very important matters to take up -- Iraq, the
Department of Defense reauthorization bill, the override of the President's
veto on stem cells, and many appropriations bills. This man, Judge
Southwick -- I have gone through his record in detail. My own record on
the Judiciary Committee is one of nonpartisanship. If I have found
nominees submitted by Republican Presidents to be objectionable, I have not
hesitated to say so. But this man has an impeccable record, an
outstanding record, with 985 authored opinions. The two opinions that
have been called into question are opinions which he didn't write, but merely
joined, on matters which -- while they might have been articulated differently,
might have been more sensitive -- certainly are not disqualifiers. This
man ought to be confirmed. I have taken the time to go into some detail
on his record because I have told my colleagues about his record and many
people have been surprised there is controversy.
I thank the distinguished Senator from Pennsylvania
for sitting overtime and my colleague from Minnesota for her patience -- I think she
has been patient -- and yield the floor.
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