A Resurgence of Active Opposition to Federal Judicial Nominations
By Marion Edwyn Harrison, Esq. (06/14/07)
After limited calm, some of the usual leftist agitators and their United States Senatorial cronies have sprung to life. Never mind that there are thirteen vacancies on the United States Courts of Appeal, with several more projected before yearend; or that more and more highly qualified individuals are disinterested in such a nomination, some because they do not want to submit to the Senatorial torture chamber, some because the salary is inadequate, some for both reasons.
The latest agitation is vented against Judge Leslie H. Southwick, whom President George W. Bush nominated on January 9, 2007, for the United States Court of Appeals for the 5th Circuit. His credentials are quite adequate. A graduate of a fine college and law school, Rice University and the University of Texas, he clerked for the Presiding Judge of the Texas Court of Criminal Appeals, then for a Judge of the 5th Circuit Court of Appeals, for which he now is nominated. Twelve years an attorney in private practice, he then served as Deputy Assistant Attorney General, Civil Division, Department of Justice, in Washington, supervising 125 attorneys in the Federal Programs Branch, which defends litigation against the United States, and the Office of Consumer Litigation, consisting of 25 attorneys who litigate to enforce Federal consumer laws. In 1994 he was elected to the Mississippi Court of Appeals, serving until his term expired in 2006, less a 17-month leave of absence to serve as Judge Advocate with the Mississippi Army National Guard, including service in Iraq during the Iraqi War.
President Bush nominated him for the United States District Court; the United States Senate Committee on the Judiciary unanimously reported the nomination. Judge Southwick then declined to run for re-election to the Mississippi Court of Appeals inasmuch as the nomination was pending before the Senate. However, the Senate never acted upon his nomination, which automatically lapsed with adjournment sine die - that is, final adjournment - of the 109th Congress.
Judge Southwick’s alleged deficiency? Judicial experience? Governmental experience? Private-practice experience? Objectivity? Scholarship? None of the foregoing.
Rather, during his approximately eleven years as an appellate judge he voted upon some 7,000 cases. In the Court’s opinion in one of those in which he voted with the majority, in 2001, there is a phrase - which he did not write - upon which the leftist agitators have latched. The decision sustained a trial-court ruling granting custody of a child to her father rather than her lesbian mother (who had misconduct problems), amid its verbiage once using the phrase “homosexual lifestyle.” It is most unusual, and generally inappropriate, for an appellate judge who does not write the opinion in a case to file a concurring opinion objecting to a phrase in the opinion of the court unless the phrase enunciates, or ties into, an issue of law with which the judge disagrees or raises a significant point of law which the judge considers extraneous to the decision. Hence, whatever Judge Southwick thought of the phrase and whatever the phrase means in context, it would be most unusual were he to have filed a concurring opinion relating to that phrase.
The other case sustained a trial-court decision holding that a governmental agency was not required to fire a woman who upon one occasion while at work uttered a racial slur, apologized to the lady so slurred, who accepted the apology and filed no complaint. The determinative issue was one of law.
Obviously the Senatorial leadership is looking for an excuse “sellable” to some of its leftist support to blitz a nomination. Thus, we see the viable portent of a resurgence of active opposition to Bush nominees. Quietly failing to confirm six of nine (or five of eight, as one Senator counts) appellate nominees, and 23 of 38 trial-court nominees is not enough. The decision evidently has been made to go public and dramatic.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
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