Executive Session

Floor Speech

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

Mr. McCONNELL. Mr. President, shortly we will have an extremely important vote in terms of our ability to deal with judicial confirmations in the future. There has been widespread bipartisan concern that the confirmation process has descended to a point with which most of the Members on both sides of the aisle are uncomfortable. We will have an interesting test shortly as to whether the Senate can use cloture not to defeat a judge but to move a nomination forward. That is the way it has been done in the past. We have had controversial judicial nominations from time to time over the years, controversial with a few but not all of the Senate. The way cloture was used in those situations was to advance a nomination, not to stop it. I am reminded when Senator Lott was the majority leader, there were a couple of controversial nominations from California. His view was they were entitled to an up-or-down vote. We invoked cloture on the nomination. I remember voting for cloture because I believed judges were entitled to an up-or-down vote and then not supporting the judge on final passage.

We have before us the nomination of a Mississippi lawyer named Leslie Southwick. He wanted to serve his country in the Armed Forces. At 42, he was too old to do so. But service to others is a duty Leslie Southwick has always taken very seriously, whether in the Justice Department or on the State bench or with Habitat for Humanity or in doing charity work for inner-city communities. So in 1992, 42-year-old Leslie Southwick sought an age waiver to join the U.S. Army Reserves. The country had the good sense and the good fortune to grant this request.

Leslie Southwick continued to serve in the Armed Forces after he was elected to the State court of appeals in 1994. He conscientiously performed his military and judicial duties, even using his vacation time from the court to satisfy the required service period in the Mississippi National Guard.

In 2003, LTC Southwick volunteered for a line combat unit, the 155th Separate Armor Brigade. His commanding officer, MG Harold A. Cross, notes that his decision ``was a courageous move; as it was widely known at the time that the 155th was nearly certain to mobilize for overseas duty in the near future.'' Colleagues such as attorney Brian Montague were not surprised. ``Despite the love of wife and children,'' Leslie Southwick volunteered for a line combat unit over a safer one ``because of a commitment to service to country above self-interest.''

In August of 2004, Leslie Southwick's unit mobilized in support of Operation Iraqi Freedom. His commanding officer states he distinguished himself at forward bases near Najaf. Another officer, LTC Norman Gene Hortman, Jr., described Leslie Southwick's service in Iraq as follows:

Service in a combat zone is stressful and challenging, often times bringing out the best or the worst in a person. Leslie Southwick endured mortar and rocket attacks, travel through areas plagued with IEDs, extremes in temperature, harsh living conditions .....--the typical stuff of Iraq. He shouldered a heavy load of regular JAG Officer duties which he performed excellently. He also took on the task of handling the claims of numerous Iraqi civilians who had been injured or had property losses due to accidents involving the U.S. military .....

Leslie always listened to these Iraqi claimants patiently and treated them with the utmost respect and kindness. He did this not just out of a sense of duty but because he is a genuinely good and caring person. His attitude left a very positive impression on all those that Leslie came in contact with, especially Iraqi civilians he helped. This in turn helped ease tensions in our unit's area of operations ..... and ultimately, saved American lives.

Lieutenant Colonel Hortman concludes that Leslie Southwick ``has the right stuff''--the right stuff--for the Fifth Circuit Court of Appeals: ``profound intelligence, good judgment, broad experience, and an unblemished reputation.'' He adds:

I know him and can say these things without reservation. Anyone who says otherwise simply does not know him.

Stuart Taylor writes in the National Journal that Leslie Southwick ``wears a distinctive badge of courageous service to his country,'' and that he ``is a professionally well-qualified and personally admirable'' nominee to the Fifth Circuit.

Judge Southwick does not seek thanks or notoriety or charity for his military and other civic service. He asks to be judged fairly--to be judged on the facts, to be judged on his record. It is the same standard he has applied to others as a judge, a military officer, and a teacher. It is a standard for which he is well known and admired. By that standard, he is superbly fit to continue serving his country, this time on the Fifth Circuit. Senators COCHRAN and LOTT, his home State Senators, know this. They are strongly behind him. As everyone knows, his peers on the State bar know this. They honored him as one of the State's finest jurists, saying he is ``an example of judicial excellence; a leader in advancing the quality and integrity of justice; and a person of high ideals, character and integrity.''

The American Bar Association knows this. It has twice given him its highest rating: ``well-qualified.'' In doing so, the ABA found him to be exemplary in the areas of ``compassion,'' ``open-mindedness,'' ``freedom from bias and commitment to equal justice under law.''

Democrats on the Judiciary Committee knew this too. Last fall all of them--every single one--looked at his record and approved him for a lifetime position to the district court. Congress adjourned before he could be confirmed, and Judge Southwick was renominated to fill a judicial emergency on the Fifth Circuit. Two things then occurred. First, the ABA increased his rating--increased his rating--from ``well-qualified'' to ``unanimously well-qualified.'' In other words, not a single person on the ABA committee found him anything other than the most qualified nominee possible. Second, in August, the committee favorably reported his nomination to the floor with bipartisan support.

Unfortunately, some of our colleagues on the other side who had supported his nomination to the Federal bench last fall seem to have changed their mind. Since there is no material change in Judge Southwick's credentials other than the ABA actually giving him an even higher rating for the circuit bench than they gave him for the district bench, the sudden change is indeed puzzling.

Critics now point to two cases out of 7,000, neither of which Judge Southwick wrote, and both of which existed when the committee unanimously approved him last fall. One of our colleagues even asserts that because these two cases create a perception among some outside groups about potential unfairness, this ``perceived fairness'' standard should determine our vote on Judge Southwick.

That is a standard I would say I would hate to have applied to nominations by a Democratic President by Republican Senators. And remember, we are setting a standard here that will apply not only to this nomination but to other nominations in the future.

The notion that mere perception, not reality, should determine whether someone is confirmed is troubling, to say the least. We expect the judges we confirm to rule based on the facts. We should not judge their fitness for office based on perception rather than the facts. In the case of Judge Southwick, the sudden ``perception'' about his fairness is driven by those who do not even know him, and it is amply disproven by his long record and by those who know him very well.

But more broadly, if we start opposing well-qualified nominees because outside groups have manufactured an unfair perception of them, then we will have established a precedent that will affect us all, as I indicated a minute ago, and for the worse--regardless of who is in the White House and which home State Senators support a nomination. Is the standard going to be around here the perception created by some outside group? I think that is a standard that would be very dangerous, no matter who is in the White House.

I urge my colleagues not to undo the good work and goodwill that brought us back from the precipice we had almost descended into a few years ago on judicial confirmations. I urge them to think hard about the ramifications of their vote for the future, and to vote for cloture on the Southwick nomination.

Mr. President, I yield the floor.

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