Please Pardon Me While I Attack a Self-Righteous Senator
By AndrewHyman Posted in Southwick — Comments (27) / Email this page » / Leave a comment »
Regarding Fifth Circuit nominee Leslie Southwick, Illinois Senator Dick Durbin said the following yesterday: "The Mississippi Supreme Court unanimously reversed the majority opinion which Judge Southwick had signed his name to, ordering the case to be remanded to determine an appropriate punishment short of termination for the White employee [who used the n-word], Bonnie Richmond." That is false.
In the case of Richmond v. Mississippi Department of Human Services, the Mississippi Supreme Court actually remanded the case "for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed." In stark contrast to the Mississippi Supreme Court, the opinion that Judge Southwick signed never once suggested that no penalty would be imposed. On the contrary, Judge Southwick voted to affirm a decision which encouraged the agency that had fired the white employee "to reinstate her with back pay.... [and] do what they feel like they have got to do" regarding penalizing the white employee short of the "ultimate sanction of loss of employment". The Mississippi Supreme Court (which Durbin praises) suggested that perhaps no penalty should be imposed, whereas Southwick's court (which Durbin castigates) affirmed that the agency should take whatever action against the white employee that the agency deems appropriate short of termination (e.g. suspension, demotion, or reprimand).
Senator Cardin is just as misguided as Senator Durbin: “Judge Southwick was repeatedly asked about [the N-word case] and he refused to disavow himself from the highly offensive language and reasoning ... to which he put his name.” That is total, unadulterated BS. How on Earth could anyone say that the following language from Southwick's court is offensive?
By affirming the Employee Appeals Board in this case, we do not suggest that a public employee's use of racial slurs or other terms of opprobrium directed toward a co-worker is a matter beyond the authority of the employing agency to discipline. The unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument. When such an incident occurs, it is incumbent upon the employing agency to deal with it in an appropriate manner.
Does Senator Cardin also think that the Declaration of Independence and the Star Spangled Banner and the Universal Declaration of Human Rights and the Gettysburg Address are offensive?
Before these self-righteous Senators make further insinuations of racism against this nominee, they ought to glance ever-so-briefly at the context. The Bushes (George HW and George W) have nominated and appointed the same number of black Appeals Court judges as Bill Clinton did --- and twice as many as during the entire span from 1776 thru 1976. There's still much room for progress, but progress is being made. In contrast to that progress, these Senators' false racial accusations against Judge Southwick are as regressive as can be.
It's one thing for Senators to bottle nominees up in committee and never vote on them. It's quite another to falsely and repeatedly insinuate racial insensitivity. Charles Evers's words about the Pickering nomination are equally applicable to the Southwick nomination: “That’s all you gotta say in this country, a white man’s a racist, this white man hates black folks. Well, I could not let them destroy a white man just because he’s white, when I know different.”
It's one thing to disingenuously exaggerate some small financial impropriety of a nominee, as Senator Schumer acknowledged doing a few years ago ("Senators who oppose a nominee ... seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition"). But it's quite another to manufacture a myth about a racist court decision that never occurred, as Senator Dick Durbin is doing now.
http://www.nytimes.com/2007/07/27/washington/27specter.html
"Guests of President Bush aboard Air Force One generally know that he expects them to behave in a certain way: No showboating or mingling with the on-board press corps and, certainly, no criticizing the commander in chief or his team.
Senator Arlen Specter violated both points of decorum on Thursday. He visited with reporters aboard the presidential airplane before it lifted off for Philadelphia and lambasted the attorney general."
Not that I'm a fan of Gonzales, but with friends like this, who needs enemies? Specter prides himself as a maverick with friends on both sides of the fence. He lied about helping Wallace and Keisler last fall in front of Cheney and the Federalist Society and has given conflicting statements recently about Southwick. He is just too much of a loose cannon for me to trust him. One day he is pushing Roberts and Alito to get confirmed, the next he is saying that he is going to investigate them for perjury. Geez!
More on a 9th Circuit split
by BoBo
Courtesy of How Appealing,
http://www.law.com/jsp/article.jsp?id=1185181605442
"Among judges at the conference, one expressed concern that members of the U.S. Supreme Court may join the split camp, and others criticized a recent newspaper opinion column that linked circuit size to the likelihood of "extreme" decisions.
The Los Angeles Times op-ed that has some judges grousing was written by Vanderbilt University Law School professor Brian Fitzpatrick, who was also a law clerk to 9th U.S. Circuit Court of Appeals Judge Diarmuid O'Scannlain of Portland, Ore., an outspoken supporter of a circuit split."
"Judge Richard Tallman of Seattle, a Republican appointed to the 9th Circuit by Clinton, testified in support of the circuit split last year. "The root concerns that caused me to testify for the split still exist and those problems will continue to plague the circuit over time."
He rejected the notion that opposition to liberal decisions has driven the split support. "It is not a factor. I am interested in the most effective way to handle cases," he said. "At some point, the court will get too big," Tallman said.
"I accept the political reality [that the split is dead for now], but I am confident the problems will continue to plague us and eventually Congress will step in," he said."
So Tallman is a Republican appointed by Clinton? A very interesting fact - maybe the Senate Republicans should force the Dems to accept him as a SCOTUS nominee if a Dem is elected in 2008?
http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20070727/NEWS/70...
"Moderate GOP Sen. Arlen Specter, who has joined dozens of conservative groups in a fight to win confirmation of a Mississippi judge, said Thursday he's willing to slow work in the Senate if Leslie Southwick is not given a confirmation vote.
"If there's a filibuster on Leslie Southwick, it will be open warfare," said Specter of Pennsylvania, the top Republican on the Senate Judiciary Committee."
"To try to bolster support for the embattled nominee, Southwick's supporters have asked for a delay of a confirmation vote in the Judiciary Committee, composed of 10 Democrats and nine Republicans.
Specter said there's a "distinct chance" one or more Democrats on the committee will change their minds about Southwick and send the nomination to the Senate floor."
Alright, to begin with, Specter does not control the pacing of the Senate. McConnell does, and yesterday the only threat McConnell made on the Senate floor was a veiled threat about future Republican obstructionism of Dem-nominated judges.
Second, Specter's talk about a filibuster is just useless chatter if there is no way to get Southwick out of committee.
Third, who is this Dem senator on the verge of changing their mind and infuriating Reid, Nan Aron, Leahy, Kennedy, Biden, Feingold and Biden? I don't think that person exists. Not only would such a person receive a lot of heat from the liberal special-interest groups, they would have to explain an awkward about-face concerning the nomination that could make them appear to be a Republican toadie. IIRC, every SJC Democrat has come out AGAINST Southwick.
Basically, I think Specter's rhetoric has little value other than rallying the conservative base. As I have said before, if this concentration on Southwick lasts too much longer without some swift action by McConnell it could hurt things with Elrod, Tinder and Haynes. To say things and not back them up is a bad strategy.
More on Southwick
by BoBo
http://www.townhall.com/Columnists/AmandaCarpenter/2007/07/27/leahys_bla...
"Judiciary member Jeff Sessions (R.-Ala.) said, “It appears--and I’m not going to go into all the details--[Democrats] want to kill this nomination in committee. They only have a slight one vote majority in the Senate.”
The Democrats on the committee also have a slim, one seat advantage over the Republicans.
“This is a really heavy-handed power play, there’s no doubt,” Sessions said.
Unfortunately, the Republicans are now paying the price for the obstructionism they performed in the 106th Congress. They are drinking a draught of their own creation. The Republicans blocked 62 Clinton nominees in committee between 1998 and 2000. As the majority party at the time, that was their right. Unfortunately, now the tables are turned. The Democrats are the new majority party. How can the Republicans imply that the Dems are being unfair to them when they did the exact same thing to the Dems when they had all the power? Again, a cautionary tale on how victors should rule.
How should the SJC Republicans wait for a Dem senator to change his or her mind about Southwick? Does such a Dem senator really even exist, or is he/she just a figment of Arlen Specter's politically devious mind? Are other judicial nominees going to be negatively impacted as we wait for this possibly never-occuring change, just like Keisler's nomination was lost as we frittered away time on Boyle last year?
Bobo: I agree with a comment below that you should not make the Democrats' baseless arguments for them. Al Kamen of the Washington Post recently said that Bush "may be hard-pressed to get the 11 he needs to match Clinton's 65 appeals court appointments. (By the way, Clinton reached his total with the Senate in GOP hands for six of his eight years.)" So, there is much justification for GOP grievances here. Moreover, when the GOP majority obstructed some of Clinton's nominees, the GOP did not maliciously and falsely smear those nominees as being racially insensitive, and the like. Andrew
they are definitely not on the SJC, which is stacked with liberals. Isn't DiFi the most "moderate" Dem on that panel?
bk
by BoBo
Actually, Herb Kohl of Wisconsin is probably the most conservative Dem on the SJC.
Courtesy of Bench Memos,
http://bench.nationalreview.com/post/?q=ZDEwOThiNzNmZGVkYTZkMWUxNTAyNTFj...
"Stuart Taylor concludes that Judge Leslie Southwick, “who is a professionally well-qualified and personally admirable Bush nominee for the [Fifth Circuit], is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.” Taylor condemns the “scurrilous allegations that Southwick is a bigot.” Further, recognizing that Senate Democrats have become puppets of the Left, he notes that “the same Judiciary Committee Democrats who had voted to confirm Southwick last year” to a district judgeship “got cold feet” on his Fifth Circuit nomination only after the baseless “attacks by liberal interest groups” began.
Will the confirmation process “continue to become an ever-uglier ordeal”? As Taylor puts it, “Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.”"
Leahy's attack on Kavanaugh
by BoBo
Courtesy of How Appealing
http://www.msnbc.msn.com/id/19978566/site/newsweek/
"The House Judiciary Committee, on a party-line vote, held Harriet Miers and other White House officials in contempt of Congress on Wednesday. But they aren’t the only ones Congress thinks might have dissembled in their discussions on Capitol Hill. Senate Judiciary Chairman Patrick Leahy is still waiting to hear whether U.S. Attorney General Alberto Gonzales will investigate allegations that one of the highest ranking judges in America did not tell the truth under oath."
re #10 - how goofy
by bk
The author's point is that he thinks Congress should "censure" judges as a way to "put a black mark on their record" without having to go through impeachment in the case of "lesser offenses". Maybe we can start having official "no confidence" votes too. Let's just have all the people in Washington spend even more time on meaningless political posturing than they already are.
SJC weak point?
by zendari
Schumer seems to be going to the mat for his hedge fund donors. The problem is worse for him since Hillary has bailed on New York bankers in favor of Presidential campaign liberal rhetoric.
My guess is key financial firms outdo PFAW and 5th circuit judges on his list of priorities. Perhaps Grassley can come up with something; he also serves on the Finance committee.
Kavanaugh
by AndrewHyman
The author of that Newsweek piece is Dirk Olin. His website is at judicialreports.com. Right up at the top, it says “Defending Independence”. What a joke.
My previous post about these silly allegations against Kavanaugh is here. Now Olin is citing different testimony by Kavanaugh --- testimony that he gave to Senator Leahy instead of to Senator Durbin. Evidently, Olin realizes that the testimony to Durbin was accurate. Anyway, here's the allegedly inaccurate quote from Kavanaugh's testimony to Leahy:
Senator Leahy. What about the documents relating to the administration's policies and practice on torture; did you see anything about that, or did you first hear about that when you read about it in the paper?
Mr. Kavanaugh. I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the Counsel's Office or as Staff Secretary.
Senator Leahy's letter to DOJ complaining about Kavanaugh's testimony only quoted his answers, and completely omitted the questions asked. Who's being dishonest?
MSM ignoring Southwick presser
by cubsfan
Am I wrong, or did the major newspapers ignore the story on the Specter presser on Southwick? If Roll Call and the Clarion Ledger are the largest publications to write a story, what does that say for our cause?
cubsfan
by SOP
It says we need to get creative and scream louder.
BoBo
by BillM
Funny how O'Scannlain's name pops up here every now & then, isn't it.... Just unimaginable how he was never considered for the AMK spot, esp. as he was on Reagan's Transition Committee in '81. Year younger than Tony, too; oh well.
I think the 9th will split eventually; just makes too much sense; but perhaps not until Dianne retires.
If Rudy wins in '08, but the Dems pick up a seat or two in the Senate, we prolly are looking at a list of Tallman, Callahan, & Ikuta (and prolly Mahoney & maybe Sykes & Cantero), even tho Repubs should usually never consider nominating a 9th judge for SCOTUS, as has been discussed here many times.
But not Kozinski. Never. He's fine where he is. His interviews give me chills. He could be AMK w/o the psychological baggage, SDO w/the constitutional background, or even Souter w/a personality. Far more risky than Mahoney, IMO, and I'm hardly wild about her.
Finally, agreed McConnell needs to decide NOW what to do with Southwick, or it'll just turn into the Boyle-killing-Keisler scenario all over again.
Schumer says no more justices for Bush
by cubsfan
http://www.politico.com/news/stories/0707/5146.html
New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
read the whole thing. I particularly liked Dana Perino's smackdown:
"This is the kind of blind obstruction that people have come to expect from Sen. Schumer," Perino said. "He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days."
Schumer has gone off the deep end
by zendari
I can accept criticism of Roberts and Alito.
I can accept his rationale for voting against them, and even filibustering them.
But to attempt to completely toss away checks and balances?
this latest statement by Chuckie
by zendari
First, I completely take back post #12.
Second, is there any reason now not to recess appoint the federal judiciary this August? For all their talk about cooperation, this pre-emptive declared opposition to any nomination screams of just the opposite.
Kent Conrad regrets his vote
by zendari
Zendari
by BillM
The dems have just completely lost their minds on this one. Insane overreaction. A significant majority of the public SUPPORT the PBA act, hated forced busing, and think McCain-Feingold violates the First Amendment.
All Rudy, Fred or Mitt needs to do is just calmly dissect this lunacy piece by piece, starting with how JGR & SA did NOT join Thomas' concurrence calling for overturning Roe/Casey. A sharp 15 year-old could win this debate. The Democrats have plainly stated that they intend to legislate thru the Judiciary. What more could you possibly ask for?
They're snatching defeat from the jaws of victory again. An unpopular POTUS at one of the weakest moments any POTUS has ever had, a badly mismanaged (at best) war with no end in sight, a growing "scandal", and they do the one and only thing that hurts them. Unbelievable.
This will quite possibly infuriate Specter too, right after he was talking about investigating JGR & SA!!!. Way to take THAT off the front page, Chuck. And, it also now sets the Schumer Precedent to go along with the Ginsburg Precedent, i.e. nominees are presumed non-confirmable. No more Ginsburg & Breyer cakewalks, pally.
Props to the White House for the instant response. McConnell, Hatch, Cornyn and all the rest need to join up immediately. Perhaps he should even be censured for this. Clear violation of the Constitution. If they can't make lemonade out of this, there's no hope at all. And Sessions or Coburn needs start making noise about investigating Breyer for his comments to Specter, as well.
I can't believe Chuck is this stupid, and that Aron & Neas are that powerful. They gotta have dirt on him; he could get re-elected til he's 90 otherwise. I now formally place him (and Breyer) in the "wouldn't shake his hand" group, along with Reid. He looks insane in that photo, too.
And whatever you do, W, don't fall into the "Mmmm, vacancy, must fill" trap. Let Jack & Ruthie's corpses molder, and Davey get lost in the woods. 5-3, 4-3, 5-2, all works.
Again, if the Republicans can't use this to their advantage, it's all over.
Those of you with connections to bigger sites & bigger voices, get on it.
Recess, Pleezus
by BillM
Recess appoint every vacant seat this August, absolutely. Gotta be people like Keisler & the various law professors and such mentioned here so nobody risks their pension, but there's plenty of those around so fill 'em all.
And I think the state judges on the level of Eid can prolly risk walking away from the golden springboards like the Colorado Supreme Court. Sounds crazy, I know. Maybe it's just me, but I think she wouldn't be unemployed for too long after her appointment expired.
We will allow no legislation to pass the Senate except under extraordinary circumstances.
Or if Bush were to say that he would veto every bill to come out of Congress except under extraordinary circumstances.
Either of those would be the same thing right?
BillM
by zendari
There is no dissection really required. The radical approach (I hesitate to label Mr. 800 SATs across the board an idiot, which IMO he clearly isn't) advocated speaks for itself.
For a party upset about pre-emptive war in Iraq, he's just declared it on judicial nominees.
sorry BoBo, but your #5 is infuriating
by Dienekes
I repeat DO NOT MAKE THE DEMOCRATS' BASELESS ARGUMENTS FOR THEM. some Clinton nominees got voted down in committee yes, but FIFTEEN still got confirmed in the last congress. we're on pace for a mere twelve, IF there are any confirmations in the last half of 08, or any of 08, 9 or 6 if not. and the Dems already got more "revenge" than they deserved for the past SIX years while in the MINORITY.
I implore you to stop this madness of handwringingly giving in to the Dems' exceedingly bad faith action/s (or lack there of) as if it is the Republicans' fault, or in any way a proportional "response" to what was already the response to the Democrats' PREVIOUS bad behavior in the Reagan/Bush 41 years (and in which a fair number of judges STILL got confirmed!) It is a completely BOGUS argument, and there is NO reason to repeat it!
Dienekes
by AndrewHyman
I agree with you 100% and I have accordingly added a few remarks at the end of Bobo's comment #5.
MCCONNELL STARTS MAKING THEIR LIVES MISERABLE BY SHUTTING DOWN THE SENATE! If he isn't going to do this, as seems likely, I think that the conservatives have run out of options. At this point, they have responded to all the Dem charges against Southwick. To waste more time doing the same thing over and over again could be detrimental to the confirmation of any more COA nominees. I want to remind everyone that the useless concentration last year on Boyle, Myers, Haynes and Wallace poisoned the nomination of Keisler and delayed the confirmations of Smith, Jordan, Livingston and Hardiman. The continued emphasis on Boyle and his recusal problems was especially debilitating. Do we want to continue fighting windmills or do we want to engage in real battles?
I am not saying withdraw Southwick's nomination, just have Lott and Cochran ask for his committee vote now and let the chips fall where they may. At this point, Republicans are complicit in the delay of Southwick's committee vote. If the Senate Republicans don't want the embarrassment of a negative vote, then Southwick's nomination should be pushed aside to concentrate the likes Elrod, Tinder and Haynes.
In January 2008, Bush can nominate people to all of the currently pending seventeen COA openings that are left open and flood the market.