The battle over the nomination of longtime Mississippi judge Leslie H. Southwick to the U.S. Court of Appeals for the Fifth Circuit is a test of character — not of Judge Southwick’s character, which appears sterling by any measure, but of the character of Senate Democrats and Republicans. Will Senate Democrats finally be honest about Southwick and his record? Will Senate Republicans, equipped with an overwhelming case for Southwick’s confirmation, stand up and fight for him, or will they meekly surrender?
Let’s review some basic facts. Judge Southwick served with distinction on the Mississippi court of appeals from 1995 through 2006. He even won the state bar’s Judicial Excellence Award. The American Bar Association — no friend to the Bush administration — unanimously awarded him its highest rating of “well qualified.” No one who knows Southwick has a bad word to say about him, and plenty have offered glowing praise.
Something of Judge Southwick’s character is evident in the fact that he obtained an age waiver to join the Army Reserve in 1992, and in 2003 he volunteered to transfer into a combat unit that was expected to head to Iraq. He served as a lieutenant colonel on active duty in Iraq from August 2004 to January 2006. He was 54 when he went to Iraq, and nearly 56 when he returned.
Every nominee deserves decent treatment. But despite — or is it because of? — his military service, Southwick has been subjected to baseless lies about two of the 7,000 or so cases in which he ruled.
The primary charge against Southwick is the vile insinuation that he’s a racial bigot. The entirety of the supposed evidence? That he joined an opinion affirming the decision of an administrative agency not to fire a public employee who used a racial slur — the N-word — on one occasion.
Never mind that the opinion he joined condemned the slur as something that “cannot be justified by any argument.”
Never mind that, under established principles of law, the opinion applied a standard of review that was deferential to the agency’s expertise and eschewed “an arbitrary, across-the-board rule.”
Never mind that the state supreme court — contrary to what Southwick’s attackers claim — agreed that the employee should not be terminated.
Never mind that the ABA’s “well qualified” rating — based on an investigation that included confidential interviews with Southwick’s judicial colleagues and with attorneys who practiced before him — reflects the ABA’s judgment that Southwick has “freedom from bias and commitment to equal justice under the law.”
Never mind that those who know Southwick well, including his former law clerks who are black, have attested to his character. “Not a hint of racism in Judge Southwick’s being” was how a former Mississippi supreme-court justice who voted for Al Gore and John Kerry put it.
Judge Southwick’s attackers also charge that he joined an opinion that was “gratuitously anti-gay,” but that charge (as discussed more fully here) is equally ridiculous.
It is doubtful that there has ever been a weaker, more disgraceful case made against any lower-court nominee. Senate Republicans should muster the gumption to fight this vilification of an outstanding judge and an outstanding man.