Executive Session

Floor Speech

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

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Mr. WHITEHOUSE. Mr. President, I have a brief unanimous consent request that the Senator from Arizona has given me the courtesy of propounding before he speaks.

Mr. President, I ask unanimous consent to have printed in the Record letters of opposition from People For the American Way, the West Texas Employment Lawyers Association, the National Gay and Lesbian Task Force, and the National Council of Jewish Women.

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

PEOPLE FOR THE AMERICAN WAY,

Washington, DC, May 30, 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: I am writing on behalf of People For the American Way and our more than 1,000,000 members and supporters nationwide to express our strong opposition to the confirmation of Mississippi lawyer and former state court judge Leslie Southwick to the United States Court of Appeals for the Fifth Circuit. Apart from the fact that much of Judge Southwick's record has not yet been provided to the Committee for its consideration, what is known of that record is disturbing, particularly in connection with the rights of African Americans, gay Americans, and workers. Moreover, given that the states within the jurisdiction of the Fifth Circuit (Mississippi, Louisiana, and Texas) have the highest percentage of minorities in the country, we deem it of great significance that the NAACP of Mississippi and the Congressional Black Caucus are among those opposing Southwick's confirmation.

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. As you will recall, on May 8, 2007, jointly with the Human Rights Campaign (which has since announced its opposition to Southwick's confirmation), we sent the Committee a letter expressing our very serious concerns about Judge Southwick's nomination, observing that, once again, President Bush had chosen a nominee for this seat who appeared to have a problematic record on civil rights. In particular, our letter discussed in detail the troubling decisions that Judge Southwick had joined in two cases raising matters of individual rights that strongly suggested he may lack the commitment to social justice progress to which Americans are entitled from those seeking a lifetime appointment to the federal bench. Those decisions take on added significance because the intermediate state appellate court on which Judge Southwick sat 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. As further discussed below, Judge Southwick's confirmation hearing on May 10 did not allay the concerns raised by these decisions or by other aspects of his record.

In one of the cases discussed in our earlier letter, Richmond v. Mississippi Department of Human Service, 1998 Miss. App. LEXIS 637 (Miss. Ct. App. 1998), reversed, 745 So. 2d 254 (Miss. 1999), Judge Southwick joined the majority in a 5-4 ruling that upheld the reinstatement with back pay of a white state employee who had been fired for calling an African American co-worker a ``good ole nigger.'' The decision that Judge Southwick joined effectively ratified a hearing officer's opinion that the worker's use of the racial slur ``was in effect calling the individual a `teachers pet'.'' 1998 Miss. App. LEXIS 637, at *19. The hearing officer considered the word ``nigger'' to be only ``somewhat derogatory,'' felt that the employer (the Mississippi Department of Human Services no less) had ``overreacted'' in firing the worker, 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.

Four of Judge Southwick's colleagues dissented. Two would have upheld the decision by DHS to fire the worker. Two others, also joined by one of the other dissenters, objected to the Employee Appeals Board's failure to impose any sanctions at all on the worker, noting a ``strong presumption that some penalty should have been imposed.'' Id. at *18. The three judges issued a separate dissent and would have remanded the case so that the board could impose ``an appropriate penalty or produce detailed findings as to why no penalty should be imposed.'' Id. at *18. Significantly, Judge Southwick chose not even to join this three-judge dissent that would have remanded the case so that some disciplinary action short of firing the worker could have been imposed on her for having referred to a co-worker by a gross racial slur, ``in a meeting with two of the top executives of DHS.'' Id. at *28.

As we discussed in our earlier letter, the Mississippi Supreme Court unanimously reversed the ruling that Southwick had joined. The Supreme Court majority ordered that the case be sent back to the appeals board to impose a penalty other than termination or to make detailed findings as to why no penalty should be imposed--the position taken by three of Judge Southwick's colleagues. Some of the justices on the Supreme Court would have gone even further and reinstated the decision by DHS to fire the worker. But all of the Supreme Court justices rejected the view of the Court of Appeals majority (which included Southwick) that the board had not erred in ordering the worker's reinstatement without imposition of any disciplinary action.

In the second case that we discussed in our May 8 letter, S.B. v. L.W., 793 So. 2d 656 (Miss. Ct. App. 2001), Judge Southwick joined the majority in 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), in large measure because the mother was living with another woman in ``a lesbian home.'' 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.''

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. As we have previously observed, 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 that the chancellor had erred. (The word gay is not used; the concurrence refers repeatedly to ``homosexuals'' and ``homosexual persons.'') Among other things, the concurrence suggests that sexual orientation is a choice, and explicitly states that while ``any adult may choose any activity in which to engage,'' that person ``is not thereby relieved of the consequences of his or her choice.'' Id. at 663. In other words, according to Judge Southwick, one consequence of being a gay man or a lesbian is possibly losing custody of one's child.

In addition, and as we noted in our May 8 letter, the concurrence claimed 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. Thus, according to the separate concurrence that Southwick chose to join, the states' rights doctrine gave 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.

Unfortunately, Judge Southwick's testimony at his May 10 hearing and his response to post-hearing written questions did not resolve and in fact underscored the very serious concerns that we and others had raised about his record and in particular his decisions in these cases. For example, in response to Senator Kennedy's post-hearing question about why, in the Richmond case, Judge Southwick had ``accept[ed] the employee's claim that [the racial slur] was not derogatory,'' Judge Southwick stated that while the word is derogatory, ``there was some evidence that [the worker] had not been motivated by hatred or by animosity to an entire race,'' and further stated that the opinion he joined had recounted evidence that the employee's use of the racial slur ``was not motivated by a desire to offend.'' Judge Southwick's answers reflect far too cramped an appreciation of the magnitude of the use of this gross racial slur anywhere, let alone to refer to a co-worker in Mississippi.

Senator Kennedy also asked Judge Southwick why, ``[e]ven if you did not think a worker should be fired for using a racial slur--why not at least let the employer impose some form of discipline?'' Southwick replied that ``[n]either party requested that any punishment other than termination be considered.'' However, as noted above, three of Judge Southwick's dissenting colleagues and the state Supreme Court found no impediment to concluding that even if termination were not warranted by the use of this offensive racial slur, the case should have been sent back so that some form of lesser punishment could be considered.

The custody case was also the subject of much questioning at Judge Southwick's hearing and in post-hearing questions. When Judge Southwick was asked at his hearing about his decision to uphold the chancellor's ruling to deprive the mother of custody of her daughter, in large measure because of her sexual orientation, Judge Southwick repeatedly insisted that a parent's ``morality'' was a relevant factor in a Mississippi custody case, the clear implication being that Southwick considers gay men and lesbians to be immoral. And he also observed that Bowers v. Hardwick, 478 U.S. 186 (1986), upholding anti-gay ``sodomy'' laws, was then good law (not yet having been overturned by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003)).

However, when Senator Durbin in his post-hearing questions expressly asked Judge Southwick whether he would have voted with the majority or the dissent in Lawrence (which, as noted, overruled Bowers), Judge Southwick did not answer this question, instead giving what appears to have become the rote answer of all nominees to lower courts--that if confirmed they will be ``bound to'' and will follow precedent. Particularly in light of Judge Southwick's reliance on the much-discredited and since overruled Bowers v. Hardwick, his refusal to answer Senator Durbin's question is quite disturbing, and further calls into question whether he can apply the law fairly to all Americans.

Judge Southwick's decisions in Richmond and in S.B. raise enormous red flags about his legal views. These are the types of cases that draw back the curtains to reveal critical aspects of a judge's legal philosophy and ideology. We simply cannot conceive of any situation in which calling an African American by the racial slur used in the Richmond case would be akin to calling her ``a teacher's pet,'' and we cannot fathom describing that slur as only ``somewhat'' derogatory, as the hearing officer did in an opinion essentially ratified by Judge Southwick. As America's recent experience with the racially offensive remarks leveled at the young women of the Rutgers University basketball team has shown, most of our country has progressed beyond racial slurs and recognizes the right of every individual to be treated with dignity regardless of race.

And we agree with the Human Rights Campaign, which stated in its May 23, 2007 letter to the Committee opposing Judge Southwick's confirmation, that if Judge Southwick ``believes that losing a child is an acceptable `consequence' of being gay, [he] cannot be given the responsibility to protect the basic rights of gay and lesbian Americans.'' Every American, regardless of his or her sexual orientation, should likewise be accorded equality of treatment and dignity under the law.

Unfortunately, Judge Southwick's decisions in Richmond and S.B. call into serious question his understanding of and commitment to these fundamental principles. Moreover, these decisions are far from the only troubling aspects of his record. As the Mississippi State Conference of the NAACP has observed in connection with Judge Southwick's rulings on race discrimination in jury selection, ``[d]ozens of such cases reveal a pattern by which Southwick rejects claims that the prosecution was racially motivated in striking African-American jurors while upholding claims that the defense struck white jurors on the basis of their race.'' Indeed, in one such case, three other judges on Southwick's court harshly criticized him in a dissent, accusing the majority opinion written by Southwick of ``establishing one level of obligation for the State, and a higher one for defendants on an identical issue.'' Bumphis v. State, No. 93-KA-01157 COA (Miss. Ct. App., July 2, 1996).

During his time on the state court of appeals, Judge Southwick also compiled a strikingly pro-business record in divided rulings. According to an analysis by the Alliance for Justice, ``Judge Southwick voted, in whole or in part, against the injured party and in favor of special interests, such as corporations or insurance companies, in 160 out of 180 published decisions involving state employment law and torts cases in which at least one judge dissented. In 2004, a business advocacy group gave Judge Southwick the highest rating of any judge on the Mississippi Court of Appeals, based on his votes in cases involving liability issues.

In one case heard by his court involving an alleged breach of an employment contract, Judge Southwick went out of his way in a dissenting opinion to praise the doctrine of employment-at-will, which allows an employer to fire an employee for virtually any reason. Despite the fact that neither the existence nor merits of the at-will doctrine were at issue in the case, Judge Southwick 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 for employment at will.''

Dubard v. Biloxi H.M.A., 1999 Miss. App. LEXIS 468, at *16 (Miss. Ct. App. 1999), rev'd 778 So. 2d 113, 114 (Miss. 2000). The National Employment Lawyers Association has cited this case in particular in explaining its opposition to Judge Southwick's confirmation. According to NELA, ``[t]hat Mr. Southwick would use the case as a platform to propound his views, rather than as a vehicle to interpret laws is problematic and suggests that he may be unable to separate his own views from his judicial duty to follow the law.'' Indeed, when asked about this case at his May 10 hearing, Judge Southwick admitted that he had put his personal ``policy'' views into a decision, but claimed to regret having done so.

Finally, we note that not all of Judge Southwick's record has been provided to the Committee, including more than two years' worth of unpublished decisions by the Mississippi Court of Appeals in cases on which he voted but in which he did not write an opinion. As the Richmond and S.B. cases underscore, 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. Particularly given what is known about Judge Southwick's record, the notion of proceeding with his nomination on less than a full record would be grossly irresponsible.

With a lifetime position on what is essentially the court of last resort for most Americans at stake, Judge Southwick has failed to meet the heavy burden of showing that he is qualified to fill it. The risks are simply too great to put someone with Judge Southwick's legal views on a federal Court of Appeals for life.

In this regard, we were particularly struck by a very telling moment at Judge Southwick's May 10 hearing. Senator Durbin, in questioning Judge Southwick, noted the great personal courage of federal Judge Frank Johnson of Alabama, whose landmark civil rights rulings were so critical to advancing the legal rights of African Americans in the south. Senator Durbin then asked Southwick, looking back on his career in public service, to cite an instance in which he had ``stepped out'' and taken an unpopular view on behalf of minorities. Judge Southwick could not identify one single instance in response to this question, even when Senator Durbin asked it a second time.

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.'' Judge Southwick has failed to meet his burden of showing that he should be confirmed.

We had hoped that after the failed nominations of Charles Pickering and Michael Wallace, the President would nominate someone for this lifetime judicial position in the tradition of Frank Johnson, or at the least someone whose record did not reflect resistance to social justice progress in this country. Unfortunately, the President has not done so. We therefore strongly urge the Judiciary Committee to reject Leslie Southwick's confirmation to the Fifth Circuit.

Sincerely,

Ralph G. Neas,
President.

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WEST TEXAS EMPLOYMENT

LAWYERS ASSOCIATION,

El Paso, TX, May 22, 2007.
Hon. PATRICK LEAHY,
Senate Judiciary Committee,
Washington, DC.

DEAR SENATOR LEAHY: I write on behalf of the West Texas Employment Lawyers' Association. Collectively, the members of our group have represented thousands of employees, workers and average folk in matters ranging from employers' failures to pay our clients a minimum wage for work performed, sexual harassment claims, as well as age, race, disability and sex discrimination claims. We routinely practice in front of the Fifth Circuit Court of Appeals and we are very proud of the work we perform on behalf of the hardworking men and women of our nation, vindicating their right to be free from discrimination.

As an organization, we felt it necessary to go on record to oppose Leslie Southwick's nomination to the Fifth Circuit. Please oppose the nomination of Leslie Southwick to the Fifth Circuit. As civil rights and employment discrimination lawyers, it is our humble opinion that Leslie Southwick would do grievous and long-term harm to ordinary workers, and normal Americans whose last names are not ``Inc.'' or ``Ins. Co.''

Please, for the sake of our civil liberties and the average working American, do all in your power to prevent Leslie Southwick's nomination.

Sincerely,

Enrique Chavez, Jr.,
President.

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NATIONAL GAY AND LESBIAN

TASK FORCE,

Washington, DC, May 29, 2007.
Senator 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: On behalf of the National Gay and Lesbian Task Force, Inc. a non-partisan civil rights and advocacy group organizing nationwide to secure lesbian, gay, bisexual, and transgender (LGBT) equality, I urge you to oppose the nomination of Leslie Southwick to the United States Court of Appeals for the Fifth Circuit. Judge Southwick has a disturbing record on LGBT rights. His statements during his confirmation hearing and written responses do not allay our concerns about how he would approach cases involving the rights of gay, lesbian, bisexual, and transgender Americans.

While on the Mississippi Court of Appeals, Judge Southwick joined an opinion removing an eight-year-old child from the custody of her mother, citing in part that the mother had a lesbian home. This decision was based on a negative perception about the sexual orientation of the biological mother and ignored findings by the American Psychological Association, along with every other credible psychological and child welfare group that lesbian and gay people are equally successful parents as their heterosexual counterparts.

Further, Judge Southwick was the only judge in the majority to join a deeply troubling concurrence written by Judge Payne. The concurrence asserts that sexual orientation is a choice and an individual who makes that choice must accept the negative consequences, including loss of custody. This statement underscores Judge Southwick's disregard for commonly accepted psychiatric and social science conclusions that sexual orientation is not a choice. Regardless, it also demonstrates Judge Southwick's callous disregard for the rights of LGBT families.

A nominee to the federal bench bears the burden of demonstrating a commitment to rigorously enforce the principles of equal protection and due process for all Americans. The judicial record of Judge Southwick makes clear that he cannot meet that burden. It also makes clear that the individual and equal protection rights of LGBT families would be in real jeopardy if he were confirmed.

We therefore oppose his nomination and request that you vote against his confirmation. It would be unconscionable for this Senate to confirm any judge who has illustrated such a clear anti-LGBT bias to a lifetime seat on the federal bench.

Sincerely,

Matt Foreman,
Executive Director.

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NATIONAL COUNCIL OF JEWISH WOMEN,

New York, NY, June 5, 2007.
Hon. PATRICK LEAHY,
Chairman, Senate Judiciary Committee,
Washington, DC.

DEAR CHAIRMAN LEAHY: On behalf of the 90,000 members and supporters of the National Council of Jewish Women (NCJW), I am writing to urge the Judiciary Committee to reject the nomination of Judge Leslie H. Southwick to the 5th Circuit Court of Appeals. Much of Judge Southwick's record remains unknown because the opinions in which he concurred were rarely published, but what we do know is deeply troubling. It does not appear that Judge Southwick will uphold federal law, including laws against discrimination on the basis of race, sex, national origin, and religion.

To the contrary. Judge Southwick joined a majority of the Mississippi appeals court in ruling that a state employee's dismissal for referring to a co-worker as ``a good ole n****'' was unwarranted, a ruling unanimously reversed by the Mississippi Supreme Court. In another case Judge Southwick wrote a concurring opinion positing that a ``homosexual lifestyle'' could be used to deprive a parent of custody of her own child.

Historically, the 5th Circuit Court of Appeals has served as a bulwark for the protection of civil rights. Sadly in recent years that record has evaporated. President Bush has twice nominated candidates perceived to be hostile to civil rights that fortunately were never confirmed. Judge Southwick appears to follow in the footsteps of his predecessor nominees in his apparent hostility to civil rights. It is also disappointing that President Bush again failed to take advantage of an opportunity to appoint an African American lawyer to the Mississippi seat on the 5th Circuit Court.

The Judiciary Committee's hearing of May 10, 2007, did not reverse the clear impression that Judge Southwick is unable to serve as an impartial judge on the 5th circuit, and much of his record still remains unavailable for analysis. The committee should reject his nomination and urge the President to submit a consensus nominee committed to respect for fundamental constitutional rights.

Sincerely,

Phyllis Snyder,
NCJW President.

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