Executive Session
Floor Speech
EXECUTIVE SESSION -- (Senate - October 24, 2007)
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Mr. MENENDEZ. Mr. President, I rise today in opposition to the nomination of Judge Southwick. With a long and consistent history of insensitivity toward discrimination and of siding with the powerful against the powerless, Mr. Southwick is the wrong person to take a seat on the Fifth Circuit Court of Appeals, and he is the wrong person to sit on the Federal bench in the State of Mississippi.
Before I explain why I oppose this nominee, let me say that my concerns are based entirely on Judge Southwick's judicial record. They have absolutely nothing to do with Judge Southwick as a person--whether he is a nice man, a good employer, or a devoted family man. That is not what this confirmation process is all about. This confirmation process is about the kind of judge Leslie Southwick was on the Mississippi State Court of Appeals and what kind of judge he will be if he is confirmed to the Fifth Circuit.
On the basis of Judge Southwick's record on the State court, I have a fairly clear picture of the kind of judge he will be if given a lifetime appointment. He will be the type of judge who consistently rules in favor of big business and corporate interests at the expense of workers' rights and consumer rights. I know this because in 160 out of 180 written decisions, he found a way to achieve that very outcome.
What I do know is that he interprets the law in a way that is not blind to color, blind to race, or blind to sexual orientation, but, in fact, focuses on these factors and sides against them. In fact, his record reveals a long history of discriminating against individuals based on race and sexual orientation, a long history of siding with the powerful over and to the detriment of the powerless.
Finally, what I do know is that when given the opportunity, he stands by those opinions. When asked by my colleagues on the Judiciary Committee, under oath, Judge Southwick was unable to think of a single instance--not even one example--of standing up for the powerless, the poor, minorities, or the dispossessed, not when he was asked during the hearing and not when he was asked for a second time in written followup. This is not the kind of judge we need on the Federal bench.
Remember the circuit this judge was nominated to--the Fifth Circuit. It is the circuit that covers Mississippi, Texas, and Louisiana, the circuit that has the largest percentage of minority residents of any Federal circuit in the United States--44 percent. Let's not forget that he is nominated to take one of the seats within that circuit reserved for a judge from Mississippi--the State with the highest percentage of African Americans in the country.
President Bush made a commitment to the residents of the Fifth Circuit, the people of Mississippi, and the people of this country that he would appoint more African Americans to this circuit. Not only has he gone back on this commitment, he has nominated someone whom the Congressional Black Caucus vehemently opposes on the grounds that he would not provide equal justice in a circuit where racial discrimination has always been the most pronounced. He has nominated someone who the NAACP, the NAACP Legal Defense Fund, the National Urban League, and the Rainbow/PUSH Coalition have all said would fail to protect the civil rights of the millions of minority residents living within the Fifth Circuit. Judge Southwick is an unacceptable nominee to any position on the Federal bench, but he is particularly ill-suited for the Fifth Circuit.
Mr. President, let me give you one example of how Judge Southwick's insensitivity toward racial discrimination affects how he decides cases. In the case of Richmond v. Mississippi Department of Human Services, Judge Southwick had to decide whether it was racial discrimination for a White employer to refer to an African American as ``a good ole'' N word. Reversing
a trial court's finding of discrimination, Judge Southwick joined an opinion stating that the N word was only ``somewhat derogatory'' and compared it to calling someone a ``teacher's pet.'' A teacher's pet?
Judge Southwick was the deciding vote in the 5-4 decision. He had strong opposition from four dissenting judges who wrote:
The [``N'' word] is, and has always been, offensive. Search high and low, you will not find any non-offensive definition for this term. There are some words, which by their nature and definition are so inherently offensive, that their use establishes the right to offend.
It is incomprehensible to me that anyone could disagree with that statement. It is even more incomprehensible that the President of the United States could nominate an individual who does not believe the law sees such a term as offensive to the Federal appellate bench.
The ``N'' word is one of the most hateful, most denigrating words in the English language. It has no place in our society and certainly should never be tacitly permitted in the workplace.
The fact that Judge Southwick joined the majority opinion--which I should add was reversed by the State supreme court--is not an anomaly. Judge Southwick also has a troubling record in cases reviewing racial bias in the selection of jurors. Of the 59 instances that an African American defendant challenged their conviction on the grounds that the prosecution systematically struck African-American jurors, Mr. Southwick refused the challenge 54 times. That is an over 91 percent refusal rating.
When the color of the juror's skin was different, when African-American defendants challenged their convictions on the grounds that their defense attorneys were prevented from striking Caucasian jurors, Mr. Southwick refused their challenge and allowed the Caucasian juror to remain in the jury 100 percent of the time. So if a defendant claimed an African American was unjustly kept off the jury, Judge Southwick denied his claim. If a defendant claimed a Caucasian was unjustly kept on the jury, Judge Southwick denied his claim. Thus, it seems like Judge Southwick favors keeping Caucasians on juries and keeping African Americans off--even in a State like Mississippi.
One of Judge Southwick's own colleagues criticized this apparent policy because it established a low burden for the state to keep Caucasian jurors on a jury and a high burden for defendants to keep African Americans on a jury. Any double standard of justice, especially one that gives the benefit of the doubt to the Government at the detriment of individual rights, is antithetical to our justice system and its presumption of innocence. It is absolutely unacceptable on a Federal appellate court.
Another area of concern I have involves Judge Southwick's rulings in cases involving discrimination on the basis of sexual orientation. In the case S.B. v. L.W., Judge Southwick joined an opinion that took an 8-year-old child away from her birth mother largely because of the mother's sexual orientation. The fact that Judge Southwick joined this overtly discriminatory opinion is extremely troubling. However, the concurrence he himself authored is even more so.
His concurring opinion stated that homosexuality was a ``choice'' that comes with consequences. Despite the fact that the American Psychological Association has found that sexual orientation is not a choice, Judge Southwick decided to give his personal opinion, his personal belief, that is was a choice, the weight of the law. Judges must always remember the precedential value of their words and their opinions. That a judge would base a legal judgment on personal opinion is disconcerting. That a judge would base a legal judgment on such misguided personal views regarding sexual orientation is absolutely intolerable.
Before I conclude, I would like to discuss one other problem I have with Judge Southwick's nomination. That is the distinct trend in Judge Southwick's decisions of deciding in favor of big business and against the little guy. In fact, Judge Southwick ruled against injured workers and consumers 89 percent of the time when there was a divided court; 89 percent of the time Judge Southwick put the interests of corporations ahead of average Americans; 89 percent of the time injured workers and injured consumers found they were entitled to no relief in Judge Southwick's eyes.
I understand that the individual is not always right. Big business is not always wrong. But no judge should have such a strongly slanted track record in one direction or another. 89 percent is a very strongly slanted track record.
That is one reason why the UAW has also come out in strong opposition to Judge Southwick's nomination. Another reason the UAW is so strongly opposed is Judge Southwick's opinion that the ``employment at will'' doctrine, which allows employers to fire workers for any reason, ``provides the best balance of the competing interests in the normal employment situation.'' In other words, he does not believe in protecting job security. It is no wonder that the UAW has serious concerns about his ability to enforce the National Labor Relations Act, title VII of the Civil Rights Act, and other laws that protect employees in the workplace and limit ``employment at will.'' I share those concerns.
Let me give you an example. In Cannon v. Mid-South X-Ray Co., Judge Southwick refused to allow a woman to receive compensation for the debilitating injuries she suffered as a result of being exposed to toxic chemicals at work. The majority believed the woman should be able to bring her case to trial. Judge Southwick dissented from the 8-2 decision. He rested his decision on a procedural point--that the statue of limitations had tolled--even though the woman did not experience symptoms of her poisoning until years after initially being exposed. He rested his decision on the fact that she should have brought her case before she experienced any symptoms of poisoning. There was a shadow of a doubt as to when the clock should have began to run for her case--and he found in favor of big business.
In another case, Goode v. Synergy Corporation, Judge Southwick's dissent would have kept a family--whose granddaughter was killed in a propane heater explosion--from receiving a new trial even after it became clear that the company responsible for the heater had provided false information in the original trial. Luckily for the family, the majority opinion felt differently.
Mr. President, our Federal appellate courts are the second most powerful courts in our country, deferring only to the Supreme Court on a relatively small number of cases each year. For the majority of Americans, justice stops there. Now more than ever we need an independent judiciary that respects the rights of all Americans, is dedicated to colorblind justice, and protects workers and consumers from corporate America. We cannot afford to get these nominations ``wrong.'' These are lifetime appointments that cannot be taken away once we grant them.
In many ways, Judge Southwick is exactly what a judge should not be. He brings his personal bias into his decision-making process. He consistently sides with the government over defendants, particularly African-American defendants. He routinely finds in favor of big business at the expense of individual workers and consumers. He does not seem to approach his cases with an open mind.
We cannot place a judge like this on the Federal appellate bench. Therefore, I urge my colleagues to vote against the motion to invoke cloture, and should that succeed, to unanimously vote against the nominee and giving a lifetime appointment to someone who consistently decides against African Americans. In a circuit in which they are such a huge part of the population, it is simply unacceptable.
I ask unanimous consent that letters of opposition and concern from groups concerned about the environment, the Bazelon Center for Mental Health Law, the United Auto Workers, and the African-American Bar Association of Dallas, Texas be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Community Rights Counsel; Earthjustice; Friends of the Earth; Sierra Club, Endangered Habitats League, Louisiana Bayoukeeper, Inc., Louisiana Environmental Action Network, San Francisco Baykeeper, Texas Campaign for the Environment, Valley Watch, Inc.,
June 13, 2007.
Re nomination of Leslie Southwick to a Lifetime Position on the U.S. Court of Appeals for the Fifth Circuit.
Hon. PATRICK J. LEAHY,
Chairman, Senate Committee on the Judiciary, U.S. Senate, Washington, DC.
Hon. ARLEN SPECTER,
Ranking Member, Senate Committee on the Judiciary, U.S. Senate, Washington, DC.
DEAR CHAIRMAN LEAHY AND RANKING MEMBER SPECTER: We are writing to express serious concerns with the pending nomination of Mississippi attorney and former Mississippi Court of Appeals Judge Leslie Southwick to a lifetime seat on the United States Court of Appeals for the Fifth Circuit, which decides the fate of federal environmental and other safeguards in Texas, Louisiana, and Mississippi.
Some of these concerns are based upon points made by Judge Southwick in two Mississippi Law Review articles that were published in 2003, while he was on the Mississippi Court of Appeals:
Leslie Southwick, Separation of Powers at the State Level: Interpretations and Challenges in Mississippi Separation of Powers at the State Level, 72 Miss. L.J. 927 (2003). [Hereinafter Separation of Powers]
Leslie Southwick, Recent Trends in Mississippi Judicial Rule Making: Court Power, Judicial Recusals, and Expert Testimony, 23 Miss. C. L. Rev. 1 (2003). [Hereinafter Recent Trends]
Judge Southwick Supports the Majority Side in the Supreme Court's Federalism Revolution and, Potentially, the ``Constitution in Exile'' Movement
Between 1990 and 2001, a 5-4 majority of the Supreme Court struck down federal legislation at a rate rivaled only by the discredited ``Lochner-era'' Court, which blocked the labor reforms of the Progressive Era and the Congressional response to the Depression in the early stages of the New Deal The Court's rulings, often grouped together under the inaccurate label of ``federalism,'' undermined important laws protecting women, senior citizens, minorities, the disabled, and the environment. These rulings have engendered withering criticism from both sides of the political spectrum. For example, Judge John Noonan, a conservative appointed by President Reagan to the Ninth Circuit, declared that the Rehnquist Court had acted ``without justification of any kind'' in doing ``intolerable injury to the enforcement of federal standards.'' ``The present damage,'' Judge Noonan warns, ``points to the present danger to the exercise of democratic government.'' As Senator Specter noted in a letter to then Judge John Roberts, these cases represent ``the judicial activism of the Rehnquist Court.''
Judge Southwick, writing in 2003, had a much more positive view of these cases. Indeed, he analogized the Court's ``return to first principles'' to a Christian following the Scriptures: ``The Court is insisting on obedience to constitutional structural commandments. It is as if the text that is being followed begins along these lines: In the Beginning, the New World was without Form, and void, and the Patriot Fathers said 'Let There Be States.' Behold, there were States, and it was Good.'' Separation of Powers, at 929. He noted that the ``return by the Supreme Court to the original scripture of federalism, or as some opposed to the outcomes might claim, to the original sin of the constitutional fathers, began in earnest with United States v. Lopez in 1995.'' Id. at 929. The bulk of his article is devoted to explaining how the model set by the Supreme Court can be employed at the state level by the new conservative majority on the Mississippi Supreme Court.
Even more troubling, at least potentially, is his assertion that ``[f]rom 1937 to 1995, federalism was part of a 'Constitution in exile. ''' Id. at 930. Judge Southwick's invocation of this term, coined by D.C. Circuit Judge Douglas Ginsburg, and still relatively obscure outside Federalist Society circles in 2003, suggests that he is supportive of efforts by certain scholars in academia and some judges on the federal bench to restore understandings of the Constitution held by a conservative majority of the Supreme Court in the period before the Great Depression and the New Deal As University of Chicago law professor Cass Sunstein opined in a New York Times Magazine cover story written by Jeffrey Rosen, success of this ``Constitution in Exile'' movement would mean:
many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not onlybe under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.
Judge Southwick is a Pro-Corporate Partisan in the Mississippi Tort Wars
Over the past decade, Mississippi judges have been engulfed in what Judge Southwick calls ``never-ending and ever-escalating tort wars being fought out at every level of the Mississippi court system.'' Recent Trends at * 11. Judge Southwick is clearly a partisan in this war. He criticizes former Mississippi Supreme Court Justice Chuck McRea for ``an interest in crafting precedents that were favorable to the interests of plaintiffs in personal injury actions.'' He calls former Mississippi Governor Ronnie Musgrove ``the poster boy for trial lawyer campaign contributions.'' Separation of Powers at 1027. Judge Southwick is also deeply critical of the litigation against tobacco companies led by former Mississippi Attorney General Michael Moore, favorably quoting another commentator for the proposition that ``[i]f the fallout from the state tobacco litigation is not addressed quickly, it will further distort and destabilize a number of areas of law, including the separation of powers within state governments.'' Separation of Powers at 1032. Finally, Judge Southwick notes that he has been criticized for taking the defendants' side in such cases: ``[o]ther appellate judges, including the author of this article, may from time to time also appear to various observers to have brought their background experiences into play in their rulings on the bench.'' Recent Trends at * 11. Some of these statements--particularly Judge Southwick's pointed depiction'' of the sitting Mississippi Governor--seem a bit intemperate for a sitting judge.
Moreover, examinations of Judge Southwick rulings by Alliance for Justice and a business advocacy group support a conclusion that Judge Southwick's rulings as a judge favored corporate defendants. 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. B. Musgrave and T. Wilemon, ``Business Group Rates State Justices,'' The Sun Herald (Mar. 24, 2004). 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.'' Alliance for Justice, Preliminary Report on the Nomination of Leslie H. Southwick to the Fifth Circuit, at 4-5; http://independentjudiciary.com/resources/docs/PreliminaryReportSouthwick.pdf.
One of the cases included in the Alliance report gives us particular concern because it limits access to courts, which is essential to ensure that Americans have a meaningful right to prevent and redress environmental harms including injury to their health and safety, clean water, clean air, and endangered species. State common law tort, nuisance and other civil remedies often provide invaluable supplementation of limited federal safety, health and environmental statutes. Court rulings that unfairly cut off state common law claims can preclude the most effective or only avenue of relief. Unfortunately, that is what Judge Southwick would have done in his dissent in a case in which the court ruled 8-2 that the statute of limitations did not begin to run until the plaintiff had reason to believe the chemicals that she was exposed to caused her illness. Gannon v. Mid-South X-Ray Co. 738 So. 2d 274 (Miss. Ct. App. 1999).
His record as a judge, combined with Judge Southwick's own words, raise questions about his ability to be a fair and neutral arbiter of environment and other cases that involve the interests of corporate defendants. Concerns about the ability of a judicial nominee to be unbiased go to the heart of the Senate's constitutional advice and consent role. We urge you to carefully consider these concerns, raised by Judge Southwick record, before voting on his proposed nomination to a lifetime position on the Fifth Circuit Court of Appeals.
Sincerely,
Doug Kendall, Executive Director, Community Rights Counsel.
Glenn Sugameli, Senior Judicial Counsel, Earthjustice.
Dr. Brent Blackwelder, President, Friends of the Earth.
Pat Gallagher, Director, Environmental Law Program, Sierra Club.
Dan Silver, Executive Director, Endangered Habitats League.
Tracy Kuhns, Executive Director, Louisiana Bayoukeeper, Inc.
Marylee M. Orr, Executive Director, Louisiana Environmental Action Network.
Sejal Choksi, Baykeeper & Program Director, San Francisco Baykeeper.
Robin Schneider, Executive Director, Texas Campaign for the Environment.
John Blair, President, Valley Watch, Inc.
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June 14, 2007.
Hon. PATRICK LEAHY,
Chairman, Senate Judiciary Committee, Russell Senate Office Building, Washington, DC.
Hon. ARLEN SPECTER,
Ranking Member, Senate Judiciary Committee, Russell Senate Office Building, Washington, DC.
DEAR SENATOR LEAHY AND SENATOR SPECTER: I write to express the opposition of the Bazelon Center for Mental Health Law to the nomination of Leslie Southwick to the Fifth Circuit Court of Appeals. The Bazelon Center is a national nonprofit organization that advocates for the rights of individuals with mental disabilities through litigation, policy advocacy, education and training. The Center previously expressed concern about the nomination; we now feel it is appropriate to express our opposition.
Judge Southwick apparently holds a narrow view of federal power that suggests that he would invalidate portions of critical civil rights legislation if appointed. He has characterized the Supreme Court as returning to the ``scripture'' of the Constitution by striking down portions of the Violence Against Women Act and Gun Free School Zones Act, and hampering Congress's power to abrogate sovereign immunity to protect Native Americans. Leslie Southwick, Separation of Powers at the State Level, 72 Miss. L. J. 927, 930-31 (2003). Southwick also indicated his apparent support for the ``Constitution in exile'' movement, a radical ideology that would undo seventy years of Supreme Court rulings, dramatically undermining the federal government's power.
These issues are of paramount concern to the disability community because the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA) have been the targets of repeated attacks on federalism grounds, and the constitutionality of these laws has been hotly contested in the federal courts.
Southwick's nomination to the Fifth Circuit is especially troubling because that court is already closely divided on the constitutionality of disability rights legislation. See Pace v. Bogalusa City School Bd., 325 F.3d 609 (5th Cir. 2003) (Congress did not validly abrogate state sovereign immunity in the IDEA), rev'd, 403 F.3d 272 (5th Cir. 2005) (5 judges dissenting); McCarthy v. Hawkins, 481 F.3d 407 (5th Cir. 2004) (upholding ADA's community integration mandate against commerce clause challenge in divided vote); Neinast v. Texas, 217 F.3d 275; (5th Cir. 2000) (Congress lacked authority under Fourteenth Amendment Section 5 to enact the ADA's bar on imposing handicapped parking placard surcharges on individuals with disabilities). Southwick's addition to the Fifth Circuit would increase the likelihood that critical disability rights protections would be eliminated in that Circuit.
This lifetime position should be held by someone who respects Congress's authority to enact needed civil rights protections, including protections for individuals with disabilities.
Sincerely,
Robert Bernstein,
Executive Director, Bazelon Center
for Mental Health Law.
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International Union, United Automobile, Aerospace & Agricultural Implement Workers of America--UAW,
October 22, 2007.
DEAR SENATOR: This week the Senate may take up the nomination of Mississippi Judge Leslie H. Southwick to the 5th Circuit Court of Appeals. The UAW urges you to oppose his nomination and to vote against any attempt to invoke cloture on this nomination.
Judge Southwick's record as a judge on the Mississippi Court of Appeals is deeply troubling. He has consistently ruled against workers seeking compensation for injuries suffered on the job. He has also opined that the ``employment at will'' doctrine, which allows employers to fire workers for any reasons, ``provides the best balance of the competing interests in the normal employment situation.'' This raises serious questions about his ability to enforce the National Labor Relations Act, Title VII of the Civil Rights Act, and other laws that protect employees in the workplace and limit ``employment at will.''
Judge Southwick also joined the court's 5-4 decision in Richmond v. Mississippi Department of Human Services, upholding the reinstatement of a state social worker who was fired for using a despicable racial epithet in a condescending reference to a co-worker. This decision reveals a disturbing lack of understanding for the negative impact of this language. In addition, a review of Judge Southwick's decisions reveals a disturbing pattern in which he routinely rejects defense claims regarding racially motivated prosecutors who strike African-American jurors, but upholds claims of prosecutors that defense attorneys are striking white jurors on the basis of their race.
For all of these reasons, the UAW believes that Judge Southwick's confirmation would endanger core worker and civil rights protections. Accordingly, we urge you to vote against his nomination and against any attempt to invoke cloture to cut off debate on his nomination.
Thank you for considering our views on this issue.
Sincerely,
Alan Reuther,
Legislative Director.
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The African-American Bar Association of Dallas, Texas,
June 6, 2007.
Re nomination of Leslie Southwick to the United States Court of Appeals for the Fifth Circuit.
Hon. PATRICK LEAHY,
Chairman, Senate Committee on the Judiciary, Russell Office Building, U.S. Senate, Washington, DC.
DEAR SENATOR LEAHY: The J.L. Turner Legal Association (``JLTLA''), the premier organization for African-American attorneys in Dallas, Texas, writes to register its opposition to the nomination of Leslie Southwick to the United States Court of Appeals to the Fifth Circuit. In so doing, we join with Senator Barack Obama, the Magnolia Bar Association, the Alliance for Justice and the National Employment Lawyers Association, among others, in voicing concerns about Judge Southwick's fitness for elevation to a lifetime appointment to the federal appellate bench.
More significantly, the JLTLA is deeply disturbed by the Bush Administration's consistent and highly objectionable pattern of selecting ultra-conservative, non-diverse candidates to serve on the most racially diverse federal circuit in the country. The Fifth Circuit, comprised of Mississippi, Louisiana and Texas, is home to more African-Americans than any other federal circuit, with the possible exception of the Fourth Circuit. Only one African-American judge, Carl Stewart, currently serves on the Fifth Circuit. Bush has, moreover, nominated no African-Americans to the Fifth Circuit. After Charles Pickering and Mike Wallace, Judge Southwick's nomination could only very generously be described as yet another ``slap in the face'' to the diverse populations of the Fifth Circuit.
Further, this appointment reflects the Bush Administration's clear disregard for the will of the American people given the significantly dynamic change in Congress. The dramatic outcome of the midterm Congressional election signals that Americans are seeking a new landscape rather than leaving an even more conservative footprint on what is now one of the most conservative Circuits in the nation.
Historically, the Fifth Circuit served as the vanguard for the advancement of civil and human rights, particularly with regard to the implementation of the U.S. Supreme Court's dictates following its historic ruling in Brown v. Board of Education et al. The last 20 years, however, have marked a notable retrenchment in the Fifth Circuit's commitment to civil rights. Judge Southwick's elevation to the Fifth Circuit would only strengthen the conservative leanings of this Court, and further alienate the diverse citizens of this Circuit.
We trust that you will call upon all of your colleagues on the Judiciary Committee to reject this nomination, and call on the President to select a consensus nominee that would bring greater balance to the Fifth Circuit.
Very truly yours,
Vicki D. Blanton, Esq.,
President, JLTLA.
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