Going South on Southwick?

National Review Online | Published on July 12, 2007

By Edward Whelan

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A big fight is brewing in the United States Senate over President Bush’s nomination of former Mississippi judge Leslie H. Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi). It is a fight that, but for Senate Democrats’ craven kowtowing to the lies of the Left, would never have happened. But if, as now appears inevitable, it does take place, it is a fight that Senate Republicans should relish.

Let’s begin with the basic facts. Judge Southwick is amply qualified to serve on the Fifth Circuit. Even the American Bar Association’s judicial-evaluations committee unanimously gave him its highest “well qualified” rating. He served for 11 years as a state appellate judge. He has 20 years of experience in private practice and a decade as an adjunct law professor. And he also served as a senior Justice Department official in the Bush 41 administration.

Every judicial nominee ought to be treated with decency and fairness. But Southwick particularly deserves a healthy dose of respect, as he is a genuine American hero. He joined the Army Reserve in 1992, when he was 42. In 2003, when he was 53, he volunteered to transfer into a line combat unit of the Mississippi National Guard, a unit that, in the words of its commander, was “widely known [as] nearly certain to mobilize for overseas duties in the near future.” Indeed, Southwick served on active duty in Iraq from August 2004 to January 2006, returning home just in time for his 56th birthday.

The Democrats on the Senate Judiciary Committee were already familiar with Southwick and his record, as they late last year unanimously approved President Bush’s nomination of Southwick to a federal district-court seat. (The full Senate failed to act on that nomination.) When Michael B. Wallace withdrew his hotly contested nomination to the Fifth Circuit at the end of 2006 and President Bush nominated Southwick in his stead, there was no reason to expect the nomination to become controversial. In fact, leading Senate Democrats, including majority leader Harry Reid and committee chairman Patrick Leahy, assured their Republican colleagues that Southwick would be confirmed before Memorial Day.

But then the Left launched its scurrilous attack on Southwick. In early May, the Human Rights Campaign and People for the American Way sent a joint letter to the Senate Judiciary Committee that charged that two opinions that Southwick joined — out of some 7000 in his judicial career — were “highly disturbing” and “strongly suggest that Southwick may lack … commitment to social justice progress.”

In the first case, wildly misrepresented by HRC and PFAW, Southwick joined an en banc majority decision by the Mississippi court of appeals that, under its “limited scope of review,” affirmed an administrative ruling that an ugly racial slur — the n-word — by a public employee did not justify the sanction of termination of her employment. Far from condoning the racial slur, the opinion that Southwick joined clearly stated that the “unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.”

The opinion did reject “an arbitrary, across-the-board rule” that use of the n-word (or of any other racial epithet) is always “so inflammatory or disruptive that it warrants the ultimate sanction of loss of employment.” But is that really a rule that the Left would favor? If popular culture is any indication, such a rule would seem likely to have a sharply disparate negative impact on black employees.

The HRC-PFAW letter claims that the “ruling that Southwick joined was unanimously reversed by the Supreme Court of Mississippi.” (Emphasis in original.) But, in fact, the majority ruling of the Mississippi supreme court agreed with Southwick’s court that termination was not an appropriate remedy: “Under the particular circumstances of this case, Bonnie Richmond’s use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS.” (The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency “for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.” The ultimate result on remand was that a written reprimand was placed in the employee’s personnel file and she was reinstated with an award of back wages and benefits.)

On the basis of this routine administrative-law ruling, HRC and PFAW viciously insinuate that Southwick is a racist.

In the second case that HRC and PFAW find so alarming, Southwick’s court applied binding Mississippi supreme-court precedent in ruling that it was proper for the lower court to consider a mother’s lesbianism in making a child-custody determination. HRC and PFAW condemn Southwick for joining a majority opinion that uses the “troubling” terms “homosexual lifestyle” and “lesbian lifestyle.” Somehow they overlook the fact that President Clinton used the term “homosexual lifestyles” in announcing his “Don’t Ask, Don’t Tell” policy, and that Ruth Bader Ginsburg (among others) joined an opinion (Lawrence v. Texas) that also used the term “homosexual lifestyle.” I would much prefer that no one use the rather vapid term “lifestyle” in any context, but the attack on Southwick is clearly a cheap shot. HRC and PFAW also criticize Southwick for joining a concurring opinion in that same case that they tendentiously mischaracterize as “gratuitously anti-gay.” (I discuss this case more fully here.)

There is, in sum, zero substance to the case against Southwick. But the Left’s attack on him caused Democrats to renege on their promise to move his nomination. And in a profile in cowardice, the Democrats on the Judiciary Committee, who know that their allies are besmirching an outstanding man, are now threatening to vote down his nomination.

Why, given its laughably feeble case, is the Left attacking Southwick? Simply put, because it believes it can defeat him. And because it is confident that stigmatizing Southwick as a backwards bigot will give Senate Democrats all the political cover they need. In other words, what really underlies the Left’s attack is its own appeal to bigotry — to the widespread belief that every white male from the South is presumptively a racist. Is that a charge that Democratic senators from southern states — like Jim Webb from Virginia, Mary Landrieu from Louisiana, and Mark Pryor and Blanche Lincoln from Arkansas — will let prevail?

Senate Republicans have the ammunition they need to win this fight, either by getting Southwick confirmed or by exposing Senate Democrats as the puppets of the Left. Let’s hope they show the necessary courage.

– Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.

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