REVIEW & OUTLOOK
Judicial Speech Code
Opposing a nominee for words he never said.
Move over, Roe v. Wade. The latest liberal judicial litmus test is whether the nominee is willing to repudiate the phrase "homosexual lifestyle." Believe it or not, that's one of the two raps against Leslie Southwick, whose nomination for the Fifth Circuit Court of Appeals comes before the Senate Judiciary Committee today.
After more than five months of Democratic control, Ralph Neas, Nan Aron and other liberal activists are so desperate to prove their relevance that they will grasp at any allegation to put another trophy kill over their mantel. What happens to Judge Southwick's nomination may well preview the fate of other appeals-court nominees in the rest of President Bush's term.
We'll come to the specific charges against the judge in a moment, but first a word about his résumé. He is no Priscilla Owen or Janice Rogers Brown--prominent conservative jurists whose appellate nominations were filibustered by Democrats in previous Congresses. Judge Southwick has been a member of the Mississippi Court of Appeals since 1994, with time out for a military leave from 2004 to 2006, when he served in Iraq. His record is so uncontroversial that last fall the Judiciary Committee unanimously approved him for a district court judgeship. The year ended before the full Senate could vote on that nomination. But when Michael Wallace withdrew for the Fifth Circuit after Democratic objections, the White House nominated Judge Southwick as an act of bipartisan good faith.
So much for that. His nomination looked safe enough until two weeks ago, when liberal critics, having scoured his 7,000-plus rulings on the Mississippi appeals bench, uncovered two allegedly hanging offenses. Both were about words that the judge himself never uttered but were contained in decisions he joined--one involving homosexuals, the other race.
S.B. v. L.W. is a 2001 opinion upholding a lower court's ruling giving custody of a child to her father rather than her lesbian mother (on the basis of several factors, including the mother's conduct). Judge Southwick didn't write the ruling, but he joined the majority opinion, which used the phrase "homosexual lifestyle." Mr. Neas calls the language "troubling," and Human Rights Campaign, a gay lobbying group, says it "denigrates" their members and that Judge Southwick's statements to Judiciary suggest his positions have not "evolved," whatever that means.
The second case, Richmond v. Mississippi Department of Human Services, involves the "N" word. Judge Southwick is criticized for agreeing with the majority in a decision upholding the state employment agency's decision not to fire a woman who had used a racial slur in her workplace. The appeals court found that the agency acted reasonably, given that the woman had used the slur only once and the target of the slur had accepted her apology and not reported it. The Congressional Black Caucus says Judge Southwick's decision to join the Richmond opinion shows he has an "unacceptable record on race." It's more accurate to say this is reverse racism by association against any white nominee from Mississippi.
The flimsy pretext for stopping Judge Southwick suggests that the judicial left has decided to browbeat Democrats into blocking nearly all Bush appellate nominees. They're hoping to retake the White House in 2008 and want everyone to forget that the current President still has 19 months in office. Only three Bush appointees have been approved this year, and there are currently five nominees for 13 vacancies. At this pace, the confirmation rate won't come close to the 15 appeals-court nominees approved by a GOP Senate during Bill Clinton's last two years.
Judiciary Democrats aren't saying how they'll vote today, but Republicans believe they have the votes to confirm if Judge Southwick's nomination gets to the Senate floor. If the judge loses--or if he's approved in committee and then denied an up-or-down vote on the floor--you'll know Ralph Neas is running the confirmation asylum.
