Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - October 24, 2007)

BREAK IN TRANSCRIPT

Mr. SCHUMER. Mr. President, I yield myself 10 minutes.

This is, indeed, an important debate, and I think you can look at it at two different levels.

First, I wish to argue strongly against the confirmation of Leslie Southwick to the Fifth Circuit Court of Appeals.

We do not assess judicial nominees in a vacuum. In addition to the particular record of the nominee, there are a number of factors that figure into a Senator's proper evaluation of a candidate. We may consider, among other things, the history behind the seat to which the candidate has been nominated; the ideological balance within the court to which the nominee aspires; the diversity of that court; the demographics of the population living in that court's jurisdiction; the legacy of discrimination, injustice, and legal controversy in that jurisdiction. In this case, the context and circumstances of the nomination require us to view it with particular scrutiny. In this case doubt must be construed not for the nominee, as some of my colleagues--the Senator from Arizona and the Senator from South Carolina--have argued, but, rather, against the nominee.

The Fifth Circuit is perhaps the least balanced and least diverse in the country. The circuit has deservedly earned a reputation as being among the most conservative in the Nation. It has 15 judges, 11 filled by Republican Presidents. It has a large African-American population. There is only one African-American judge serving on it. The circuit has three seats traditionally reserved for Mississippians. That honor has never gone to an African American, even though Mississippi's population is more than one-third African American. Of course, the Fifth Circuit services areas that still suffer the scars and effects of decades of deep racial inequality and discrimination.

So you have to put things in context. We have had two other nominees who were extremely unsuitable candidates: Judge Pickering, whom this body rejected, and Michael Wallace, whom many, when you speak to them in Mississippi and in the African-American community there, said an African American might not get a fair trial in Michael Wallace's court. But they were nominated. The exact same reasoning could have been used for them. Those were the two previous nominees. We have to evaluate Judge Southwick against this backdrop.

When we do so, we cannot have confidence that he is a moderate jurist who will apply the law evenhandedly. Most disturbingly, Judge Southwick's judicial record provides no comfort that he understands or can wisely adjudicate issues relating to race, discrimination, and equal treatment. In this circuit above all, that should be a criterion. Whether you are from Mississippi or Arizona or South Carolina or New York, we should all care about that.

Let's go over some of the record. There is the Richmond case. The majority opinion in the Richmond case reflects an astonishingly bad decision. In that case, Judge Southwick joined a 5-to-4 ruling that essentially ratified the bizarre finding of a hearing officer who reinstated a State worker who had insulted a fellow worker by using the worst racial slur, the ``n'' word. To join that wrongheaded decision was to ignore history and common sense and common decency, to find a basis for excusing the most deeply offensive racial slur in the language. As the dissenters in Richmond pointed out, and there were four of them, the term ``is and always has been offensive. Search high and low, you will not find any nonoffensive definition for this term. There are some words which by their nature and definition are so inherently offensive their use establishes the intent to offend.''

Of course, the Mississippi Supreme Court, the highest court in Mississippi, unanimously reversed. The Richmond case cannot be dismissed, as some would like, as just one case that Judge Southwick merely joined. He could have joined the very vocal dissent. He could have written a separate concurrence. He did neither. It is fair and proper to ascribe to Judge Southwick every word of the Richmond majority opinion--and the case is a touchstone, the case is a benchmark. It is a predictor and it is all the more important because there is little or nothing in the record to offset the impression it gives about Judge Southwick's jurisprudence.

Judge Southwick, at his hearing, said some of the hearing officer's analysis ``does not now seem convincing to me,'' even though he endorsed it only 9 years ago. This mild attempt at backtracking at his confirmation hearing does not provide comfort. In fact, it smacks of a nominee trying in some small way to please Senators who will decide his fate.

Beyond this defining case, moreover, Judge Southwick has shown over more than a decade of adjudicating cases that we should be concerned about his legal philosophy in so many areas: consumer rights, workers' rights, race discrimination in jury selection. He has shown a bias. I am not going to get into those cases, but, again, I would say there is a special onus on us all here.

Most of my colleagues--some on this side of the aisle--have said: Well, he issued thousands of opinions and only made one mistake. First, I am not sure that is true. When you look at his opinions, there are more mistakes than that. But let's even say he made this one mistake. Normally that would be a good argument. We all make mistakes. None of us before God is flawless, is perfect. Of course we are human beings. But certain mistakes are not forgivable. They may be forgivable of a person as a man or a woman, but not forgivable when you are elevating someone to the Fifth Circuit.

We have had a poison in America since the inception of this country. This is a great country. I am a patriot. I love this country dearly. It is in my bones. But the poison in this country, the thing that could do us in, is race and racism. Alexis de Tocqueville, the great French philosopher, came here in the 1830s. He made amazing predictions about this country. We were a tiny nation of farmers, not close to the power of Britain or France or Russia, the great European nations. De Tocqueville comes from France and says this country, America--this is in the 1830s--this country is going to become the greatest country in the world. He was right. Then he said one thing could do us in--race, racism and its poison. He was right again.

When it comes to the area of race and racism, we have to bend over backwards. The African-American community in Mississippi, in the country, is strongly against the Southwick nomination. They know this discrimination, this poison of America, better than anybody else. They know, even in 2007, the little winks and gestures that indicate a whole different subplot. When you condone using the ``n'' word, you are doing just that. Unfortunately, Judge Southwick--he may be a good man and I certainly don't think he is a racist, but his words have to be seen in context. Like it or not, when he is nominated to the Fifth Circuit he is carrying 200-some-odd years of bigotry that has existed in this country, and particularly in this circuit, on his back. That is the issue here. This is not just any mistake; this is not just any flaw. This comes in a whole subcontext.

Then I heard yesterday that Judge Southwick has not met with the one African Member of the Mississippi delegation, BENNIE THOMPSON. He has not met with, I believe it was called the Magnolia Bar Society, the African-American bar society in Mississippi. Should not Judge Southwick, after these allegations, have gone out of his way? He called yesterday, after BENNIE THOMPSON, Congressman Thompson, presented this to us. Shouldn't he have been camped out at BENNIE THOMPSON's door to try to explain what he did? It is the same kind of attitude. It is the same kind of subtext that, frankly, unless you are African American, you don't see.

JOHN MCCAIN is right. Elections have consequences. I do not expect our President to nominate to the Fifth Circuit somebody who has my views or the views of other Members of this side. Elections do have consequences. But on the issue of race, the poison of America, where the Fifth Circuit has been a cauldron, I do expect the President to nominate someone who is above reproach. Because we are not just judging a man or a woman as he or she treads on this Earth. We are judging somebody to go to the second highest court in the land. There must be--there must be--thousands of jurists of every race who meet the President's views but do not have this unfortunate, serious, and irremovable blemish upon them.

This one to me is not an ordinary situation. It is not one mistake out of 7,000 opinions. It is not judging whether Judge Southwick is a good man. Let's assume he is. It goes far deeper than that. It is not saying, as so many of my colleagues have said: We may have a Democratic President and we need, next time out, to make sure we come together on judges. I wish to do that. You know, when you vote for 90-some-odd percent of the President's nominees, almost every one of whom you disagree with philosophically, you are doing that. I have done that. Most Members on this side have done that. But that does not forgive this--again, in the context, not of somebody as a person but in the context of something to be elevated to the Fifth Circuit.

In conclusion, we have to make every effort to bend over backwards on the issue of race and racism in the Fifth Circuit and in the other circuits as well. We have not done that here. We are sort of casting it aside, finding an excuse, pushing it under the rug. Again, I do not believe Judge Southwick is a racist, but I do believe when it comes to the issue of race, one on the Fifth Circuit must be exemplary. This case shows he is not. He has failed that standard. I urge my colleagues, every one of them on both sides of the aisle, to look into their hearts when they cast this important vote.

Mr. President, I ask unanimous consent that several letters regarding this Nomination be printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

May 8, 2007.
Re Leslie Southwick

Hon. PATRICK LEAHY,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. ARLEN SPECTER,
Ranking Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.

DEAR SENATOR LEAHY AND SENATOR SPECTER: We are writing on behalf of People for the American Way and the Human Rights Campaign and our combined grassroots force of more than 1,700,000 members and other supporters nationwide to express our serious concerns regarding the nomination of Mississippi lawyer and former state court judge Leslie Southwick to the United States Court of Appeals for the Fifth Circuit. As you know, Judge Southwick has been nominated by President Bush to fill a seat on the Fifth Circuit that the President has previously attempted to fill with Charles Pickering and then with Michael Wallace, both of whose nominations were met with substantial opposition, in large measure because of their disturbing records on civil rights. Now, with Judge Southwick, President Bush once again appears to have chosen a nominee for this seat who has a problematic record on civil rights, as further discussed below. And once again the President has passed over qualified African Americans in a state with a significant African American population that has never had an African American judge on the Fifth Circuit.

At the outset, we are constrained to note that there are significant concerns regarding the insufficient time provided to the Judiciary Committee to consider Judge Southwick's record in the careful manner required by the Senate's constitutional responsibilities in the confirmation process, as well as concerns raised by the fact that Judge Southwick's complete record does not appear to have been provided to the Committee. The confirmation hearing for Judge Southwick was scheduled with only a week's notice to the Committee, providing insufficient preparation time for the consideration of a controversial appellate court nominee. In addition, there has not been sufficient time since Judge Southwick submitted his responses to the Committee's questionnaire, in late February, for his entire judicial record to be reviewed; indeed, it appears that some of his record has not yet even been provided to the Committee.

Leslie Southwick served as a judge on the Mississippi Court of Appeals from 1995-2006. The number of cases in which he participated during that time is voluminous, well in excess of 7,000 by his own estimation. Moreover, according to Judge Southwick, many of the court's decisions during that time were not published at all (including all of the court's rulings--some 600 cases a year according to Southwick--issued over a period of approximately two and a half years during his tenure). While Judge Southwick in late February provided to the Committee a compact disc containing thousands of pages of his own unpublished opinions, to the best of our knowledge he has not provided copies of the court's unpublished opinions as to which he voted but that he did not write. As the cases discussed below underscore, it is critical that the Committee examine those rulings as well, for the opinions that a judge chooses to join, or elects not to, can be just as revealing of his judicial philosophy as those that he writes.

In addition, and to our knowledge, the Committee also has not been provided with Department of Justice records relevant to Southwick's tenure as a Deputy Assistant Attorney General during the administration of the first President Bush. These records would shed additional light on Southwick's legal philosophy and views, particularly on federal law issues that simply did not come before him while he served on the Mississippi Court of Appeals but that likely would if he were confirmed to a federal Court of Appeals. It is axiomatic that the Committee should not consider any judicial nominee without the nominee's full record or adequate time in which to review it.

Apart from these significant procedural issues, a preliminary review of Judge Southwick's record raises serious concerns about his record on civil rights. As an intermediate state appellate court, the Mississippi Court of Appeals hears appeals in state law criminal cases and typical state law civil cases such as contract disputes, tort claims, workers compensation matters, trusts and estates matters, and the like. It does not routinely consider the types of federal constitutional and civil rights matters that would shed a great deal of light on a judge's legal philosophy concerning these critical issues. Nonetheless, Judge Southwick's positions in two cases before that court during his tenure raising matters of individual rights are highly disturbing, and strongly suggest that Southwick may lack the commitment to social justice progress to which Americans are entitled from those seeking a lifetime appointment to the federal bench. We discuss each of these cases below.

Richmond v. Mississippi Department of Human Services, 1998 Miss. App. LEXIS 637 (Miss. Ct. App. 1998), reversed, 745 So. 2d 254 (Miss. 1999)

In Richmond, Judge Southwick joined a 5-4 ruling upholding the reinstatement of a white state social worker, Bonnie Richmond, who had been fired for referring to an African American co-worker as ``a good ole nigger'' at an employment-related conference. Richmond worked for the Mississippi Department of Human Services (``DHS''), which terminated her employment after other employees raised concerns about her use of the racial slur. The ruling that Southwick joined was unanimously reversed by the Supreme Court of Mississippi. The facts are as follows.

After she was fired, Richmond appealed her termination to the state Employee Appeals Board (``EAB''), which ordered her reinstatement. The hearing officer opined that Richmond's use of the racial slur ``was in effect calling the individual a `teachers pet'.'' 1998 Miss. App. LEXIS 637, at *19. He considered the word ``nigger'' only ``somewhat derogatory,'' felt that DHS had ``overreacted,'' and was concerned that other employees might seek relief if they were called ``a honkie or a good old boy or Uncle Tom or chubby or fat or slim.'' Id. at *22-23.

The opinion that Southwick joined upheld the EAB's reinstatement of Richmond, essentially ratifying the astonishing findings and conclusions of the hearing officer. Moreover, the opinion that Southwick joined accepted without any skepticism Richmond's testimony that her use of the racial slur was ``not motivated out of racial hatred or animosity directed at her co-worker or toward blacks in general, but was, rather, intended to be a shorthand description of her perception of the relationship existing between the [co]-worker and [a] DHS supervisor.'' Id. at *9-10 (emphasis added).

There was a strong dissent by two judges who were obviously appalled by the hearing officer's findings and opinion. Unlike the majority, they openly criticized the hearing examiner's findings and also criticized the majority for presenting a ``sanitized version of [those] findings.'' Id. at *29. According to the dissenters,

The hearing officer's ruling that calling [the co-worker] a `good ole nigger' was equivalent to calling her `teacher's pet' strains credulity. ..... The word `nigger' is, and has always been, offensive. Search high and low, you will not find any nonoffensive definition for this term. There are some words, which by their nature and definition are so inherently offensive, that their use establishes the intent to offend.

Id. at *26.

The dissenters would have held that the EAB's actions were not supported by substantial evidence, and would have upheld the decision by DHS to fire Richmond. Another judge wrote a separate dissent, joined by two other judges, in which he would have remanded the case to the EAB so that some penalty could be imposed on Richmond, or detailed findings made as to why no penalty was appropriate.

DHS appealed the ruling of Southwick's court to the Mississippi Supreme Court, which unanimously reversed. The Supreme Court majority ordered that the case be sent back to the EAB to impose a penalty other than termination or to make detailed findings as to why no penalty should be imposed. Some of the justices on the court would have gone even further and reinstated the decision by DHS to fire Richmond. But all of the Supreme Court justices rejected the view of the Court of Appeals majority (which included Southwick) that the EAB had not erred in ordering Richmond's reinstatement.

S.B. v L.W., 793 So. 2d 656 (Miss. Ct. App. 2001).

In this case, Judge Southwick joined a decision by the Mississippi Court of Appeals, upholding--over a strong dissent--a chancellor's ruling taking an eight-year-old girl away from her bisexual mother and awarding custody of the child to her father (who had never married her mother). The mother was living at the time with another woman, and in awarding custody to the father, the chancellor was plainly influenced by the mother's sexual orientation and his obvious concern about having the girl continue to live in what he called ``a lesbian home.'' Judge Southwick not only joined the majority opinion upholding the chancellor's ruling, but alone among all the other judges in the majority, he joined a concurrence by Judge Payne that was not only gratuitous, but gratuitously anti-gay.

In taking the girl away from her mother (with whom she lived), the chancellor cited a number of factors that he claimed weighed in favor of the father, but it is clear that he was heavily influenced by the mother's sexual orientation. For example, the chancellor stated that the factor of ``[s]tability of the home environment'' weighed in favor of the father, because ``he is in a heterosexual environment. Has a home there that is an average American home.'' 793 So. 2d at 666. Meanwhile, the chancellor said, ``[t]o place the child with [the mother], the child would be reared in a lesbian home, which is not the common home of today. To place a child with [the father], the child would be reared in a home which is considered more common today.'' Id.

The mother appealed to the Court of Appeals which, as noted above, upheld the chancellor's ruling taking her daughter away from her. The majority opinion, which Southwick joined, held that the chancellor had not erred in taking the mother's sexual orientation into consideration as what it viewed as one factor in his ruling. In addition to the disturbing substance of the majority's ruling, its language is also troubling, and refers repeatedly to what it calls the mother's ``homosexual lifestyle'' and her ``lesbian lifestyle.''

Not only did Southwick sign on to the majority opinion, but he also made an affirmative decision to join a concurrence by Judge Payne that was gratuitously anti-gay--and was the only other judge in the majority to do so. The concurrence appears to have been written for the sole purpose of underscoring and defending Mississippi's hostility toward gay people and what it calls ``the practice of homosexuality'' (id. at 662), in response to the position of the dissenters (see below) that the chancellor had erred. (The word gay is not used; the concurrence refers repeatedly to ``homosexuals'' and ``homosexual persons.'') The concurrence begins by stating that the Mississippi legislature has ``made clear its public policy position relating to particular rights of homosexuals in domestic relations settings.'' Id. at 662. It then proceeds to note that Mississippi law prohibits same-sex couples from adopting children--although this law had nothing to do with the case, since the mother was the birth mother--and also notes that state law makes `` `the detestable and abominable crime against nature' ''--which it says includes ``homosexual acts''--a ten-year felony. Id.

Finally, the concurrence takes a huge and troubling states' rights turn, claiming that ``[u]nder the principles of Federalism, each state is permitted to set forth its own public policy guidelines through legislative enactments and through judicial renderings. Our State has spoken on its position regarding rights of homosexuals in domestic situations.'' Id. at 664. In other words, according to the separate concurrence that Southwick chose to join, federalism gives Mississippi the right to treat gay people as second-class citizens and criminals. The views expressed in this concurrence strongly suggest that Judge Southwick is hostile to the notion that gay men and lesbians are entitled to equal treatment under the law.

Two judges dissented, and in particular noted that there had been no finding that there was any conduct harmful to the child, and that ``it is the modern trend across the United States of America to reject legal rules that deny homosexual parents the fundamental constitutional right to parent a child.'' Id. at 668.

As more than 200 law professors wrote to the Senate Judiciary Committee in July 2001, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate's co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These include not only an ``exemplary record in the law,'' but also a ``commitment to protecting the rights of ordinary Americans,'' and a ``record of commitment to the progress made on civil rights, women's rights, and individual liberties.''

The burden is on Judge Southwick to demonstrate that he satisfies these important criteria for confirmation. In addition to addressing the serious concerns raised by the matters discussed herein and those that have been raised by others, Judge Southwick must also make his full record available, and the Committee must have a reasonable opportunity to examine it. Because the Supreme Court hears so few cases, the Courts of Appeals really are the courts of last resort in most cases and for most Americans. It is therefore imperative that the Committee not engage in a rush to judgment over anyone seeking a lifetime seat on a federal appellate court, and that it insist upon being provided with the nominee's complete legal record.

It is critical that the Committee closely scrutinize Judge Southwick's full record and his jurisprudential views and legal philosophy, particularly with respect to matters critical to individual rights and freedoms. Until the Committee has the opportunity to do that, and unless the significant questions raised to date by Judge Southwick's record are resolved satisfactorily, the Committee should not proceed with consideration of Judge Southwick's nomination.

Sincerely,

Joe Solmonese,

President, Human Rights Campaign.

Ralph G. Neas,

President, People For the American Way.

--

MAGNOLIA BAR

ASSOCIATION, INC.,

Jackson, Mississippi, May 30, 2007.

Re Nomination of Leslie Southwick

Hon. PATRICK LEAHY,
Chairman, United States Senate, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR SENATOR LEAHY: The Magnolia Bar Association, Inc. opposes the nomination of Leslie Southwick to the United States Court of Appeals for the Fifth Circuit.

Founded in 1955, the Magnolia Bar was formed as all organization of African-American lawyers in Mississippi at a time when the Mississippi Bar was only open to white attorneys. The Magnolia Bar, an affiliate of the National Bar Association, is now a biracial organization whose membership is committed to the same ideals of racial equality that drove our founders to form the Magnolia Bar in the first place.

A federal judgeship is a lifetime position. Any time there is an opening, there are a number of people who could be considered, and no one is necessarily entitled to such an appointment. While the President has a right to nominate, the Senate and its Judiciary Committee must insure that the nominations do not form a pattern that is racially discriminatory in purpose or effect. President Bush has demonstrated an absolute disdain for appointing African-Americans to the federal judiciary; particularly within the states representing the Fifth Circuit. Of his seven nominations to the Fifth Circuit Court of Appeals and his 32 nominations to the district courts, not one nominee is an African-American. This is particularly painful as African-Americans comprise 37% of the population of Mississippi according to the most recent census. This is the highest of the fifty states. Louisiana is the second highest while Texas also has a high African-American population percentage. Confirmation should focus not simply on the nominee, but on the impact the person's appointment will have on the federal judiciary and the interpretation of the law.

Leslie Southwick's nomination continues a stark pattern of racial discrimination and racial exclusion in appointments by President Bush to the Fifth Circuit and to the federal judiciary from Mississippi. If the Senate Judiciary Committee approves this nomination, it will perpetuate this pattern of exclusion and will, in our view, bear equal responsibility for it. Moreover, Judge Southwick's record as a state court of appeals judge in Mississippi suggests that he is not the right person for the Fifth Circuit Court of Appeals at this time in our history, and that his presence there could lead to an improperly narrow interpretation of the constitution and the civil rights laws. There are many others from Mississippi who would make good federal judges, some of whom are African-American. We ask that you not approve this nomination, but instead allow President Bush to reconsider and perhaps nominate someone who will add to the Fifth Circuit's stature, diversity, and sensitivity to the need to enforce fully the civil rights laws.

Despite an ever-growing pool of highly qualified candidates from which to choose, all seventeen Mississippi nominees for federal judgeships the past twenty-two years have been white. The only appointment of an African-American federal judge in the history of Mississippi, the twentieth state to join the union, was when Judge Henry Wingate was appointed by President Reagan to the district court in 1985. Of the sixteen active and senior judges from Mississippi on the federal district courts and court of appeals, only one is African-American. Of the nineteen active and senior judges on the Fifth Circuit, only one is African-American--Carl Stewart of Louisiana, who was appointed by President Clinton. Incidentally, Judge Stewart is only the second African-American to have been appointed to the Fifth Circuit since the court was created by the Judiciary Act of 1869.

Having an appreciation of Mississippi's long history of racial apartheid, disenfranchisement, interposition and massive resistance, it is scandalous that President Bush has not seen fit to nominate not one African-American from our state to the federal judiciary.

Fortunately, the Senate Judiciary Committee has not ratified all of these nominees. It did not approve the earlier nominations of Charles Pickering and Mike Wallace to this seat. Yet, President Bush continues his pattern of racial exclusion by submitting only white people for these appointments, and submitting those who have not shown a sufficient appreciation of the need for racial progress in Mississippi. It is vitally important for the Senate Judiciary Committee to stand firm and not ratify President Bush's brazen disregard of the need to integrate the federal judiciary and to nominate those who have demonstrated they will fully enforce the civil rights laws. If President Bush is unwilling to help create a racially integrated federal judiciary that is his prerogative. The Senate, however, should not be an accomplice to this unjustifiable behavior. It should keep the seats open until he is willing to do so or until we have a new President who will have a fresh opportunity to do so.

Several organizations have already expressed concern about the decisions of Judge Southwick and whether he will fairly and properly interpret the law with respect to the civil rights of all. We share those concerns. Particularly troubling is the decision Judge Southwick joined in the case of Richmond v. Mississippi Department of Human Services. The Mississippi Court of Appeals does not review many cases involving racial issues in employment. This is not a situation where this decision is an outlier in what otherwise is a progressive record on issues of race in the workplace. Judge Southwick and his colleagues in the 5-4 majority basically held that the Mississippi Department of Human Services--an agency of the State of Mississippi--could not discipline this worker who called a co-worker a ``good ole nigger.'' This decision was the subject of publicity in Mississippi, Clarion Ledger, August 5, 1998, and seemed to send a message that the Court of Appeals majority did not believe state officials should have the power to eliminate this sort of behavior from the workplace.

In written questions by Senator Durbin, Judge Southwick was asked why he believed that the hearing officer was not acting arbitrarily and capriciously when he (the hearing officer) concluded that the use of the word ``nigger'' was similar to the terms ``good old boy or Uncle Tom or chubby or fat or slim.'' Judge Southwick responded by saying that ``[i]t was the EAB's [Employee Appeals Board] decision, though, not that of the hearing officer, that was subject to our analysis .....'' But that statement is misleading. The Richmond majority opinion, which Judge Southwick joined, states: ``The hearing officer's findings, subsequently adopted by the full Board, address two separate aspects of the matter under consideration.'' 1998 Miss. App. LEXIS 637 *4. The opinion adds: ``In order to reverse the EAB, we must determine that there was not substantial evidence in the record to support the findings made by the hearing officer and ratified by the full board.'' Id. *7. As explained by the dissent of Judge King (a distinguished African-American from Mississippi who is now Chief Judge of the Mississippi Court of Appeals having been appointed as Chief by the Chief Justice of the Mississippi Supreme Court and who would make an excellent federal appellate judge): ``Because the EAB made no findings of its own, we can only conclude that it incorporated by reference and adopted the findings and order of the hearing officer.'' Id. * 19. As Judge King later said: ``The majority opinion is a scholarly, but sanitized version of the hearing officer's findings and is subject to the same infirmities found in that opinion.'' Id. *28-29.

Moreover, we agree with Judge King, that one can ``[s]earch high and low, [and] you will not find any non-offensive definition for [the] term [nigger], and it ``is so inherently offensive that it is not altered by the use of modifiers, such as `good ole.'' Id. at 26-27 Having used the term, which has always been offensive, within a 60% black division of a state agency with more than 50% black employees demonstrated a gross lack of judgment that the agency should have dismissed the employee. As Justice Fred Banks, the African-American member of the Supreme Court at the time, explained in his concurring opinion:

[I]t is clear [the Department of Human Services] had an interest in terminating Bonnie Richmond because not to have taken some sort of action regarding the comment made by her, could possibly have subjected the agency to a claim of racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond could constitute negligence. Richmond v. Mississippi Dept. of Human Services, 745 So.2d 254, 260 (Miss. 1999)(Banks, J., concurring)(joined by Sullivan, P.J., and Smith, J.)

We are also troubled by the other decisions and positions cited in the various questions propounded by members of the Judiciary Committee and in the statements issued by other organizations expressing concern over this nomination. We question whether Judge Southwick will properly enforce the law when it comes to the rights of those who are unpopular and who are marginalized by the political process. The Fifth Circuit needs a moderating influence at this point in history, but it appears this appointment will have the opposite effect.

As Senator Durbin pointed out at the hearing on Judge Southwick's nomination, the Fifth Circuit Court of Appeals was once a collection of several heroic judges who steadfastly enforced the civil rights of African-Americans and other dispossessed groups even though many white people in the South were quite hostile to the notion of equal rights under the law. Unfortunately, the present-day Fifth Circuit has often retreated from that legacy by applying a narrow and overly technical interpretation of the constitution and the civil rights laws. Moreover, at a time when the bars of Mississippi, Louisiana, and Texas have become racially integrated, and when many governmental bodies in those states have achieved significant racial diversity, the Fifth Circuit presently stands as an almost all-white judicial body in the heart of the Deep South. This is a sad legacy and the Senate Judiciary Committee should do everything it can to end that legacy rather than perpetuate it.

Thank you for your consideration.

Sincerely,
CARLTON W. REEVES,

President,
Magnolia Bar Association, Inc.

--

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION,

San Francisco, California, May 30, 2007.
Hon. PATRICK J. LEAHY,
Chairman, Committee on the Judiciary,
Washington, DC.
Hon. ARLEN SPECTER,
Ranking Member, Committee on the Judiciary,
Washington, DC.

DEAR SENATORS LEAHY AND SPECTER: I am writing to you as President of the National Employment Lawyers Association (NELA) to express our strong opposition to the nomination of Leslie Southwick to the Fifth Circuit Court of Appeals. After reviewing Mr. Southwick's background and legal experience, we believe he is not qualified to be appointed to the federal bench.

Mr. Southwick has been nominated to the same Fifth Circuit seat that has been steeped in controversy: President Bush recess appointed Charles Pickering to the seat in January 2004 and nominated Michael Wallace to the seat in 2006. NELA strongly opposed both of those nominees and takes a similar position on Mr. Southwick's nomination.

Like Pickering and Wallace, Mr. Southwick has espoused extreme views reflecting a lack of commitment to equality and justice in the workplace. For example, Mr. Southwick joined a troubling 5-4 decision from the Mississippi Court of Appeals that excused the use of a racial slur by a white state employee. In Richmond v. Mississippi Dep't of Human Services, Bonnie Richmond, an employee with the Mississippi Department of Human Services (DHS), was terminated when she referred to an African-American co-worker as a ``good ole n*****'' at a meeting that included agency executives. Richmond appealed her termination to the Mississippi Employee Appeals Board (EAB). A hearing was conducted by one member of the EAB who had been designated to act as hearing officer.

Among other things, the hearing officer concluded that the ``DHS overreacted'' to Richmond's comments, because the term ``was not a racial slur, but instead was equivalent to calling [the African American employee] `teacher's pet.''' The hearing officer stated, ``I understand that the term `n*****' is somewhat derogatory, but the term has not been used in recent years in the conversation that it was used in my youth, and at that point--at that time it was a derogatory remark ..... I think that in this context, I just don't find it was racial discrimination.''

The majority, which included Mr. Southwick, affirmed the EAB hearing officer's decision without reservation. They found that, taken in context, the slur was an insufficient ground to terminate Richmond's employment in part because it ``was not motivated out of racial hatred or racial animosity directed toward a particular co-worker or towards blacks in general.'' The dissent, rightly disturbed by the majority's failure to acknowledge the inherent offensiveness of the epithet, stated that ``the hearing officer and the majority opinion seem to suggest that absent evidence of a near race riot, the remark is too inconsequential to serve as a basis of dismissal.''

When Judiciary Committee member Senator Russ Feingold, at Mr. Southwick's hearing earlier this month, characterized the argument relied upon by Mr. Southwick in the case as ``a pretty shocking piece of analysis,'' Mr. Southwick even admitted that the reasoning ``does not now seem convincing to me.'' However, his backpedaling comes too late and fails to allay NELA's concerns that Mr. Southwick, if confirmed to the Fifth Circuit, will turn a blind eye to discrimination in the workplace.

Indeed, NELA is troubled by Mr. Southwick's views on other workplace issues, particularly his zealous support for the employment-at-will doctrine, a doctrine which provides that employers can fire employees for virtually any reason. In Dubard v. Biloxi, H.M.A., the court addressed the issue, among others, of whether there was sufficient evidence to show that the defendant did not breach the plaintiff's employment contract or that the defendant did not wrongfully discharge the plaintiff. In a dissenting opinion that focused less on the merits of the case and more on the virtues of the employment-at-will doctrine, Mr. Southwick went to great lengths to justify a legal theory that has been the subject of intense legal, judicial and academic controversy. He wrote: ``I find that employment at will, for whatever flaws a specific application may cause, is not only the law of Mississippi but it provides the best balance of the competing interests in the normal employment situation. It has often been said about democracy, that it does not provide a perfect system of government, but just a better one than everything else that has ever been suggested. An equivalent view might be seen as the justification of employment at will.''

Mr. Southwick casually, and without any supporting citations, equated the doctrine of employment at will with democracy. In fact, it is its polar opposite. That doctrine is often used to justify employers' decisions to discharge employees who have engaged in pro-union activities or in other conduct protected by anti-discrimination, minimum wage and overtime, occupational safety and health, family and medical leave, whistleblower protection, and other federal and state statutes. An employer can cause devastating financial and emotional harm to an employee; an individual employee rarely has that same power. Mr. Southwick's endorsement of that doctrine calls into question his willingness to vigorously enforce federal legislation that imposes restrictions on an employers ability to fire employees without a good reason or, for that matter, without any reason.

Based on his demonstrated insensitivity to race issues, combined with his apparent inability to divorce his views from his judicial obligation to be fair and independent, NELA believes that Mr. Southwick would be in the mold of previous nominees like Charles Pickering and Michael Wallace who had never been friendly to employee rights. As such, NELA is strongly opposed to Mr. Southwick's nomination to the Fifth Circuit Court of Appeals and believes he should not be confirmed by the Senate.

Thank you for your consideration. If you have any questions, please feel free to contact NELA Program Director Marissa Tirona.

Sincerely,
KATHLEEN L. BOGAS,

President,
National Employment Lawyers Association.

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