Hatch Speech
By AndrewHyman Posted in Southwick — Comments (9) / Email this page » / Leave a comment »
Below the fold is a speech that Senator Hatch gave yesterday in the Senate, about the Southwick nomination.
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Mr. HATCH. Madam President, I rise in strong support of Judge Leslie Southwick's nomination to the United States Court of Appeals for the Fifth Circuit.
The evaluations, hearings, and investigations are complete.
The American Bar Association's highest rating is in.
It is time for this body, the United States Senate, to decide whether to consent to this judicial nomination by voting up or down. That is our role and we should assert it rather than avoid it.
Vote yes or vote no, but it is time for this body to do its duty and vote on the Southwick nomination.
This Senator will proudly vote to confirm this excellent nominee.
Before looking specifically at the Southwick nomination, I must respond to some recent remarks made by my Democratic colleagues concerning the confirmation process.
Three of their claims require a response.
First, Democrats have said that the three appeals court nominees confirmed so far this year are ``three more than were confirmed in this similar year in the last Clinton term.''
That is a factual claim and it is either true or false.
An evaluation of this claim is simple:
We are in the third year of President Bush's second term and the Senate is controlled by the other party.
The third year of President Clinton's second term was 1999, when the Senate also was controlled by the other party.
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Democrats, therefore, are claiming that the Senate confirmed no appeals court nominees in 1999.
That allegation is patently false.
In fact, and this is obviously a matter of public record, the Senate confirmed seven appeals court nominees in 1999, more than twice as many as the Senate has confirmed so far this year.
Now, to give my Democratic colleagues the benefit of the doubt, perhaps they intended to refer to a different year during the last Clinton term.
If so, the evaluation is the same with the same conclusion that their claim is patently false.
The Senate confirmed seven appeals court nominees in 1997, 13 in 1998, seven in 1999, and eight in 2000, a presidential election year.
That is an average of nine per year and seventeen per Congress.
It was my Democratic colleagues who used appeals court confirmations in President Clinton's second term as a benchmark for appeals court confirmations in President Bush's second term.
By my Democratic colleagues' own standard, they will have to pick up the appeals court confirmation pace to match what Republicans did during President Clinton's second term.
The second thing Democrats have claimed is that the judicial vacancy rate is at an all-time low.
Once again, that claim is false.
The judicial vacancy rate has been increasing each year since before President Bush's re-election.
Average vacancies this year are 35 percent higher than in 2004, and average district court vacancies are 62 percent higher.
I do not know where my colleagues get their information, but the judicial vacancy rate is on the way up, not at an all-time low.
The third Democratic claim is that the Republican-controlled Judiciary Committee did not give hearings to 70 of President Clinton's judicial nominees. This, they say, was a sign of great disrespect.
This is the judicial confirmation equivalent of an urban legend but, like other urban legends, constant repetition does not make it any more true.
We may be entitled to our own opinions, but we are not entitled to our own set of facts.
Not only does this claim, right off the bat, overstate the total by more than 20 percent but, more importantly, it ignores the fact that some judicial nominees do not receive hearings for a variety of perfectly legitimate and obvious reasons.
My Democratic colleagues, of course, know this but also know that most Americans will not know the difference and many in the media will not bother to sort it out.
President Clinton, for example, withdrew a dozen of his own nominees for various reasons, some involving significant and even embarrassing controversy. Was it disrespectful not to hold a hearing on nominees the President had withdrawn?
President Clinton submitted other nominees too late in a Congressional session to permit proper evaluation. Was it a sign of great disrespect not to give a hearing to a nominee not yet ready for a hearing?
Other nominees did not receive hearings because they were opposed by their home-State Senators, a tradition of Senatorial courtesy dating well back into the last century. Are my Democratic colleagues arguing that respecting the wishes of home-State Senators, including some of them, was being disrespectful to the nominees?
There are even more reasons, but eliminating these three alone--Presidential withdrawals, late nominations, and home-State Senator opposition--raises the Democratic margin of error to more than 100 percent.
The Southwick nomination has none of the problems I just mentioned that prevented confirmation of some Clinton judicial nominees.
President Bush has obviously not withdrawn the nomination. He submitted this nomination on January 9, 2007, when the current 110th Congress convened, so there has been more than enough time for evaluation and confirmation.
In fact, last year the Judiciary Committee thoroughly vetted Judge Southwick when he was initially nominated to the U.S. District Court.
We looked at the same man with the same character, the same qualifications, and the same record. And we sent the nomination to the full Senate without any opposition, including from any of my Democratic colleagues who today are suddenly raising such a ruckus.
To be fair, in the name of full disclosure, I must candidly admit that two important things have changed since last fall, when the Judiciary Committee unanimously approved Judge Southwick's nomination.
First, Judge Southwick has been nominated to the appeals court rather than to the district court.
Second, the American Bar Association has rated Judge Southwick higher for his appointment to the appeals court than they did for his appointment to the district court.
It makes no sense to me, but I suppose someone somewhere might think that a higher rating justifies more opposition.
The higher rating means Judge Southwick gets even higher marks from the ABA for his compassion, open-mindedness, freedom from bias, and commitment to equal justice.
If someone can explain how that makes him less qualified for the Federal bench, I would like to hear it.
Unlike Clinton nominees who did not receive hearings, Judge Southwick has the strong support of both of his home-State Senators.
The Senators from Mississippi, Senators Cochran and Lott, are senior and highly respected members of this body. Their support ought to mean something.
I have no doubt that if these two fine Senators objected to Judge Southwick receiving a hearing or an up or down vote, the Democrats who run this body would give them the respect they deserve and there would be no vote.
It seems, however, that today this traditional courtesy to esteemed home-State Senators is on its way to becoming a one-way street.
Both Mississippi Senators have been working with President Bush to fill this same seat for more than 5 years, and I think they deserve our respect and support just like we would seek theirs if the situation were reversed.
In the last few years of the Clinton administration, a Republican Senate confirmed a string of highly controversial appeals court nominees who nonetheless had the backing of their home-State Senators.
I supported them and today I urge my colleagues to do the same for our colleagues from Mississippi and for Judge Southwick.
When I came before this body a month ago, I explained why the tactics being used against Judge Southwick and other judicial nominees are illegitimate.
It is illegitimate to focus only on a few of the thousands of decisions in which Judge Southwick participated while on the Mississippi Court of Appeals.
It is illegitimate to ignore the facts and the law of those few cases.
It is illegitimate to ignore the standard of review that Judge Southwick had to follow as an appeals court judge.
It is illegitimate to look only at the political interests served by the results of those few cases.
It is illegitimate to create a distorted, twisted caricature of this nominee, a caricature that is simply unrecognizable by those who know him best and have worked with him most.
These are some of the illegitimate tactics being used against this fine nominee. I have a hard time believing that any of my colleagues would endorse these tactics or, worse yet, be persuaded by them.
As I said, the entire case against this highly qualified nominee rests on just two of the 7,000 cases in which he participated, each involving an opinion which he did not write.
If saying that is not enough to reject this empty case against Judge Southwick's confirmation, I fear for the confirmation process and this body's role in judicial appointments.
But let me take a minute and look at these two lone decisions that supposedly justify this tirade, this assault, this hatchet job against Judge Southwick.
The first is titled Richmond v. Mississippi Department of Human Resources.
Last week, one of my Democratic colleagues said that this one lone decision creates a perception that Judge
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Southwick will be not be fair in civil rights cases as well as in cases about what he called the rights of ordinary people.
I agree with the distinguished Judiciary Committee Ranking Minority Member, Senator Specter, who has said that this body should evaluate judicial nominees based on facts, not perceptions.
Perceptions, after all, can be created with one press release, sound bite, letter, interview, or floor speech. If all it takes to justify opposition is such a deliberately invented perception, a politically motivated innuendo is all it would takes to defeat a nominee and destroy a good man's reputation.
That is wrong, and is another sign that this judicial confirmation process is steadily degrading.
In the Richmond case, a State employee used a racial slur one time. The person to whom it was directed did not hear it and later accepted an offered apology. The State review board concluded that these circumstances did not require terminating the employee.
To hear the critics describe it, the issue on review before the Mississippi Court of Appeals was whether racial slurs are good or bad, whether racial slurs ought to be tolerated in the workplace.
To hear the critics describe it, the appeals court looked at this case from scratch, had all options open, and could have done anything it wanted.
The critics know that is not true, but they also know that most people will not know the difference.
Apparently, the political or partisan goal of attacking Judge Southwick justifies misleading people about what judges do in general, and about this case in particular.
The Mississippi Court of Appeals, on which Judge Southwick sat, was limited to reviewing this decision under a specific, narrow standard called the arbitrary and capricious standard.
The appeals court was required to affirm the review board's decision if there was any evidence to support it. That is a very deferential standard, and a judge's personal opinion is not enough to overcome it.
On appeal, the Mississippi Supreme Court agreed with Judge Southwick's court that the facts of this case did not require that the employee be terminated.
Let me make this very clear.
Judge Southwick's critics are not addressing what the court actually did in this case. They are attacking Judge Southwick because his court did not reach a decision it had no authority to reach. No matter what your personal feelings about the issue in the case, that is the wrong standard.
It is wrong to suggest that judges are not fair to parties simply because they rule against them.
It is wrong to suggest that judges should prefer politically correct results over legally correct results.
Judges do not exist to opine on social problems or address social trends, they exist to decide legal cases.
Judges do not exist to serve political interests or pursue policy agendas, they exist to settle legal disputes.
Judge Southwick apparently understands this much better than his critics. Properly understanding that judges must follow the law rather than their personal opinions is precisely why Judge Southwick should be confirmed.
Some have said that this decision shows Judge Southwick has hostile views on race.
It does not show his views on that issue one way or another.
But if any question remained about Judge Southwick's personal views, in his confirmation hearing before the Judiciary Committee--a more appropriate setting in which to do it--Judge Southwick made his views perfectly clear. He said that this particular slur is always offensive and inherently derogatory.
If some of my colleagues believe judges should ignore the law and decide cases based on personal views, they should say so.
If some of my colleagues believe judges should decide which side is going to win before a case even starts, they should say so.
If some of my colleagues really believe that litigants will get a fairer shake before judges who decide cases by personal opinions rather than the law, they should explain such a wrong-headed idea.
America's founders did not believe that, I do not believe that, and I think most Americans do not believe that.
The other case with which Judge Southwick's critics would indict him is titled S.B. v. L.W.
In this custody case, all of the relevant factors such as employment, income, home ownership, and community roots, weighted in favor of the father.
State statutes and State judicial precedents at the time also favored the heterosexual father over the bisexual mother.
The court's job was to review these factors, and the court upheld the decision to give custody to the father. That is what the law required, so that is what the court did.
So what is it about this decision that Judge Southwick's critics offer as the basis to oppose him? That an opinion he joined but did not write used the phrase ``homosexual lifestyle.''
I can accept that some people see this as a negative phrase.
But others might see it simply as a factual phrase.
The Mississippi Supreme Court used this phrase in the line of cases that Judge Southwick's court had to follow in its decision.
The phrase has been used in hundreds of court decisions, on both the State and federal level, all across this country. This includes the Supreme Court's decision in Lawrence v. Texas, which Judge Southwick's critics no doubt would applaud.
It is hardly a stretch to see that this phrase is relevant in a custody case where applicable law makes lifestyle patterns and home life decisions important.
This, I say to my colleagues, is the case against Judge Southwick: two decisions, two opinions he did not write, with results some people do not like but which followed applicable law and stuck to the job the appeals court had to do.
That so-called case against Judge Southwick is less than unpersuasive, it is no case at all.
Before I close, I want to repeat a point I made the last time I addressed this body about this excellent nominee.
In their letter opposing Judge Southwick, the Congressional Black Caucus said that we ``should be impressed by the frequency with which Southwick's opinions and concurrences have been overruled.''
That is the standard the Congressional Black Caucus recommends that we apply to this nomination.
Judge Southwick authored 927 opinions and concurrences while on the Mississippi Court of Appeals.
Only 21 of those 927 opinions and concurrences, or just 2.3 percent, have been either reversed or even criticized by the Mississippi Supreme Court in 12 years.
As the Congressional Black Caucus said I should be, I am indeed impressed by the frequency with which Judge Southwick's opinions and concurrences have been overruled. A reversal rate so low is a sign that he is a balanced jurist whose work is highly respected and holds up under scrutiny.
This is yet another reason why this excellent nominee should be confirmed.
Mr. President, the majority of Americans who disapprove of our job performance has been growing all year, from 56 percent in March and April to nearly 65 percent today.
A record low of 14 percent of Americans have confidence in Congress.
Perhaps, just perhaps, illegitimate tactics and unfair treatment of good people and outstanding nominees such as Judge Southwick contribute to this dismal picture.
I hope that changes, not only for the nominees but also for the vitality and integrity of this institution.
The Southwick nomination is ready for the Senate to decide whether to give its consent by voting up or down.
The background checks are done.
The ABA's highest rating is in.
The questionnaire is complete.
The hearings have been conducted.
The distinguished home-State Senators have given this nominee their strongest endorsement.
None of the factors that stopped, held up, or slowed down past nominees exist in this case.
There are no reasons or excuses for further delay.
The Judiciary Committee and the full Senate should promptly approve this excellent nominee.
I yield the floor.
They are beautiful words
by Oz
but rather useless unless McConnell is willing to back them up.
Courtesy of How Appealing,
http://www.nytimes.com/2007/08/01/washington/01roberts.html?ex=134362080...
The liberal MSM is really sinking low. They are trying to use Roberts' seizure against him. Listen to what Linda Greenhouse is saying now:
"Might this encounter with illness even change the way John Roberts sees himself, his job or the world?"
"Professor Chafe argued that trauma or tragedy strengthened them and gave them the qualities of leadership they displayed later in life. Could adversity temper a jurisprudence that critics of the chief justice have discerned as bloodless and unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time?"
The rest of the article implies that Roberts' illness may be much worse than he is currently letting on, and that for the benefit of the court he may want to step down now!
This type of reprehensible trash reporting is proof positive of just how desperate the Libs have become to regain control of the court.
Greenhouse - sheesh!
by cubsfan
"unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time."
Of course, she is talking about a convicted murderer who had lost two previous appeals and was on his bogus third attempt to get off the hook. "Ordinary people," indeed.
She's a piece of work.
McConnell today on Southwick
by cubsfan
Remarks of Republican Leader Mitch McConnell
On the Nomination of Judge Leslie Southwick
August 1, 2007
Mr. President, in 1992 a Mississippi lawyer named Leslie Southwick wanted to serve his country in the armed forces. At forty-two, he was too old to do so. But service to others is a duty that Leslie Southwick had always taken seriously, whether in the Justice Department, or on the state bench, or with Habitat for Humanity, or in doing charity work for inner-city communities.
So in 1992, forty-two year old Leslie Southwick sought an age-waiver to join the U.S. Army Reserves. The country had the good sense and good fortune to grant his request.
Leslie Southwick continued to serve in the armed forces after he was elected to the state court of appeals in 1994. He conscientiously performed his military and judicial duties, even using his “vacation time” from the court to satisfy the required service period in the Mississippi National Guard.
In 2003, Lieutenant Colonel Southwick volunteered for a line combat unit, the 155th Separate Armor Brigade. His commanding officer, Major General Harold A. Cross, notes that his decision “was a courageous move; as it was widely known at the time that the 155th was nearly certain to mobilize for overseas duty in the near future.” Colleagues like Attorney Brian Montague were not surprised: “Despite love of wife and children,” Leslie Southwick volunteered for a line combat unit over a safer one “because of a commitment to service to country above self-interest.”
In August of 2004, Leslie Southwick’s unit mobilized in support of Operation Iraqi Freedom. His commanding officer states that he distinguished himself at forward operating bases near Najaf. Another officer, Lieutenant Colonel Norman Gene Hortman, Jr., described his service in Iraq:
“Service in a combat zone is stressful and challenging, often times bringing out the best or worst in a person. Leslie Southwick endured mortar and rocket attacks, travel through areas plagued with IEDs, extremes in temperature, harsh living conditions . . . –the typical stuff of Iraq. He shouldered a heavy load of regular JAG Officer duties, which he performed excellently. He also took on the task of handling the claims of the numerous Iraqi civilians who had been injured or had property losses due to accidents involving the U.S. military . . . This involved long days of interviewing Iraqi civilian claimants, many of whom were children, widows and elderly people to determine whether the U.S. Military could pay their claims. Leslie always listened to these Iraqi claimants patiently and treated them with the utmost respect and kindness. He did this not just out of a sense of duty but because he is a genuinely good and caring person. His attitude left a very positive impression on all those that Leslie came in contact with, especially, the Iraqi civilians he helped. This in turn helped ease tensions in our unit’s area of operations . . . and ultimately, saved American lives.
Lieutenant Colonel Hortman concludes that Leslie Southwick “has the right stuff” for the Fifth Circuit Court of Appeals: “profound intelligence, good judgment, broad experience, and an unblemished reputation.” He adds, “I know him and can say these things without reservation. Anyone who says otherwise simply does not know him.” Stuart Taylor writes in the National Journal that Leslie Southwick “wears a distinctive badge of courageous service to his country,” and that he “is a professionally well-qualified and personally admirable” nominee to the Fifth Circuit.
Judge Southwick does not seek thanks or notoriety or charity for his military and other civic service. He asks to be judged fairly--to be judged on the facts, to be judged on his record. It is the same standard he has applied to others as a judge, a military officer, a teacher, and a mentor.
It is a standard for which he is well known and admired. By that standard, he is superbly fit to continue serving his country, this time on the Fifth Circuit.
• His colleagues know this, as do his home-state senators.
• His peers with the State Bar know this; they honored him as one of the state’s finest jurists, declaring him “an example of judicial excellence; a leader in advancing the quality and integrity of justice; and a person of high ideals, character and integrity.”
• The American Bar Association knows this; it has twice given him its highest rating, “well-qualified,” and in so doing found him to be exemplary in the areas of “compassion,” “open-mindedness,” “freedom from bias and commitment to equal justice under law.”
• Even Democrats on the Judiciary Committee know this; just last Fall all of them—again, all of them—looked at his record and approved him for a lifetime position on the federal bench.
But it appears Democrats on the committee may now apply a different standard to Judge Southwick. A member of the Democratic Leadership who serves on the committee states that what is “determinative” is whether a judicial nominee is perceived to be fair.
The notion that perception rather than reality will be dispositive in evaluating a nominee is at odds with the principle of the rule of law. And it is not fair to manufacture a false impression of someone through insinuation and innuendo and then use that falsehood to defeat him. In the case of Judge Southwick, the sudden “perception” about his fairness is driven by those who do not even know him, and it is disproved by his long record and by those who know him well.
All nominees deserve to be treated with dignity. But a selfless public servant and veteran like Leslie Southwick deserves to be treated with respect. And it is disrespectful for the same Members of the Judiciary Committee who unanimously supported his nomination last fall to now turn around and unanimously oppose him. The only change in Judge Southwick’s credentials between then and now is that the American Bar Association, hardly a conservative group, has increased its rating of him from “well-qualified” to “unanimously well-qualified.”
A party-line committee vote would not be a “perceived” flip-flop or a “perceived” injustice, but an actual one. It would make clear that despite the promise of a new start on judicial nominations, the Senate Majority will, when push comes to shove, treat judicial nominees unfairly based only on a manufactured perception.
This sad standard is not only unjust but unwise. As we all know, once established, precedents in the Senate are difficult to undo. Establishing a “third party perception” standard on the Southwick nomination will be bad for this Congress and future ones, regardless of who is in the White House and which home-state senators support a nomination.
Because such a decision will affect us all—and for the worse—it is appropriate for the Senate collectively to express its view on whether it wishes to go down this path, whether it wishes to undo the good work and good will that brought us back from the precipice a few years ago. It is for that purpose that I have offered the Sense of the Senate on the Southwick nomination. I encourage my colleagues to review it, to review the record, and to think long and hard about what they want to do.
I thank the Chair, and I yield the floor.
Sense of the Senate resolution
by cubsfan
McConnell and Specter have offered the amendment to HR 976 (dealing with tax relief for small businesss). After detailing Southwick's qualifications, the money paragraph says:
"It is the sense of the Senate that the nomination of Judge Leslie Southwick to the United States Court of Appeals for the Fifth Circuit should receive a vote by the full Senate."
Or is he trying to do something else? Maybe he wants Senators either to be nailed for flip-flopping or else be able to pressur ethe SJC by saying he has proven majority support.
Southwick on tomorrow's agenda?
by cboldt
I thought I heard Senator Leahy say that he was going to put the nomination of Leslie Southwick on the committee agennda for tomorrow's meeting. IF so, the pressure has been at least somewhat effective.
Senator McConnell's amendment will be subjected to a (non-debateable) motion to table -- so said Senator Reid, who will make the motion if no other senator does.
I think Hatch has done a good job of refuting a lot of the Dems' rhetoric.
I also think he did a good job at describing why certain Clinton nominees were not given hearings.