Few seats in the federal judiciary carry this kind of baggage.
Every nominee for the same Mississippi appellate court seat under President Bush has struggled for Senate confirmation amid a debate that has always descended into a clash over race — not just for the nominees’ approach to civil rights issues but because all three have been white men tapped for a bench that, critics say, fails to reflect the diversity of the region it serves.
This is the backdrop of a key Senate test vote as early as Tuesday on Leslie Southwick, the latest nominee for the 5th Circuit Court of Appeals whose candidacy is being fought along the same rhetorical lines as those who failed before him. The arguments — not to mention the language employed by advocacy groups — barely differ.
“This is clearly a circuit that begs for better representation of minorities,” said Senate Majority Whip Richard J. Durbin (D-Ill.), who opposed Southwick in the Judiciary Committee. “To have three nominees in a row who do not address that problem is a concern. For many of us, that is where the conversation starts.”
Sen. Orrin G. Hatch (R-Utah) has taken to defending what he views as the punching bag of judicial nominations: the Southern white male.
“It’s come down to the point where some Democrats automatically reject a white male from Mississippi,” Hatch said. “They just don’t want to have that seat filled, especially by a male. ... If [Southwick] was just average, that is one thing. But he is super-talented.”
Southwick’s nomination largely remains an inside-the-Beltway skirmish, failing to draw the broader public attention given to Charles W. Pickering Sr., who was accused by Democrats of supporting segregation as a young man but defended by supporters as a racially tolerant and qualified candidate.
In a nomination saga that lasted nearly three years, Pickering was featured in TV ads, was interviewed on CBS’s “60 Minutes” and received a presidential recess appointment in early 2004 to bypass Senate opposition. Ultimately, he withdrew from consideration.
Bush then nominated Michael B. Wallace, a Mississippi lawyer criticized by groups such as People for the American Way for a “troubling” record on civil rights. The American Bar Association rated Wallace “not qualified,” and he withdrew his name in December 2006.
The stakes in the Southwick nomination are just as significant.
For Democrats, it’s their first judicial test as the majority party. No fewer than two dozen interest groups that represent core Democratic constituencies — labor, women, African-Americans, gays and lesbians — have asked the Senate to reject Southwick. And subtly, they remind Democrats of their power.
“President Bush continues his pattern of racial exclusion by submitting only white people for these appointments, and submitting those who have not shown a sufficient appreciation of the need for racial progress in Mississippi,” Carlton W. Reeves, president of the Magnolia Bar Association, which advocates on behalf of black lawyers and judges, wrote in a May letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).
“If President Bush is unwilling to help create a racially integrated federal judiciary, that is his prerogative,” Reeves continued. “The Senate, however, should not be an accomplice to this unjustifiable behavior. It should keep the seats open until he is willing to do so or until we have a new president who will have a fresh opportunity to do so.”
Five women, three Hispanics and one African-American sit on the 5th Circuit, which hears cases from Texas, Mississippi and Louisiana. The tension point is that no African-American has been nominated from Mississippi, where blacks account for 37 percent of the population — one of the highest perentages in the country.
For Republicans, Southwick represents one of the last opportunities to install conservative nominees before Bush leaves office. They have rallied to Southwick’s side, highlighting his decision to take a leave in 2005 from the Mississippi Court of Appeals to serve as a judge advocate in Iraq and his unanimous “well-qualified” rating from the American Bar Association.
“Behind the scenes, race is everything here,” said Curt Levey, executive director of The Committee for Justice. “He is not being targeted because he has an outrageous record. They are really having to dig. If you can think of another reason why they are targeting Southwick, tell me.”
Liberal interest groups can think of at least two cases — and quite a few more, if the letters penned to the Senate Judiciary Committee are any indication.
Southwick critics have latched onto one decision in which he participated that upheld the rehiring of a social worker who used a racial slur to describe a colleague. Another involved removal of a child from her bisexual mother. Critics say these cases, along with others, show a disregard for the environment, workers’ rights and minorities.
His supporters have argued that a handful of rulings out of thousands, particularly those that he joined but did not write, should not disqualify him.
“Judge Southwick properly applied governing law and applicable precedent in the decisions at issue, and I haven’t seen anyone go beyond flinging epithets to present a serious argument that his reasoning was legally defective,” Ed Whelan, president of the Ethics and Public Policy Center, wrote on National Review’s Bench Memos blog.
The Senate is scheduled to begin debating the nomination Tuesday. Democrats could filibuster, which means Republicans must line up at least 60 votes to break it. And that would require 11 Democrats to break with their party.
Seven Democratic members of the Gang of 14, a bipartisan Senate group that agreed in 2005 to avoid filibustering judicial nominees for the duration of the last Congress, remain in office.
But at least one of them, Sen. Mark Pryor (D-Ark.), said last week that he is undecided on Southwick.