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By AndrewHyman Posted in Southwick — Comments (8) / Email this page » / Leave a comment »

Sounds like Senator Specter will be holding a press conference any second now to defend Judge Southwick. See the post at Bench Memos for details.

Yesterday, Senators Durbin, Cornyn, and Specter discussed the Southwick nomination on the Senate floor. Their full remarks are below the fold. Senator Specter is demonstrating a Passion for Truth here. Good for him. Senator Cornyn also did a good job rebutting Durbin.

Judge Southwick's vote in Richmond v. Mississippi Department of Human Services still seems to be the main issue here. This is really crazy, because his vote in that case was perfectly reasonable. Judge Southwick said that the Mississippi Employee Appeals Board (EAB) was not arbitrary and capricious when it decided not to not fire a woman who used the n-word and then apologized for it. The EAB had decided "to reinstate her with back pay. The agency can do what they feel like they have got to do." So, the state agency that had tried to fire her was then been free to impose a lesser penalty than termination, for use of this very offensive word. News flash to Durbin: Southwick's decision allowed the state agency to suspend, reprimand, demote, and otherwise punish this person, and the Mississippi Supreme Court agreed with Southwick that the ultimate penalty of dismissal might be inappropriate here.

Anyway, the full remarks of these three Senators (from yesterday) are below the fold.

Mr. DURBIN. Mr. President, one of the more challenging tasks for a Senator is not to stand in judgment of a bill or even a law or a policy but to stand in judgment of a person. I served in the House of Representatives for 14 years before coming to the Senate. It is the one dramatic difference between the two bodies. Time and again we are called on in the Senate, in our capacity to advise and consent to Presidential nominations, to stand in judgment of people. It is not an easy assignment. You have to, in a matter of a short period, maybe meet a person, read about their background, and try to think ahead whether they are ready for the job they are being sent to do. For some it is only a temporary assignment. It might be for a year or two or more in a Federal agency with an important responsibility. I look at those judgments and assignments seriously, but not nearly as seriously as the task of picking Federal judges. A Federal judge, that man or woman, is appointed for a lifetime. The decision you make about a person has to be done more carefully. There has to be more reflection. If questions are raised about a person, their judgment, their values, their background, their veracity, their integrity, those questions are taken more seriously because that judge on that bench will be the face of America's law for the rest of his or her natural life.

As a member of the Judiciary Committee, I come face to face with these decisions on a regular basis and try to do my best to not only help pick good judges for my own State of Illinois but to be fair in judging those the President, whether a Democrat or Republican, sends to us for approval.

There is a controversial nomination now pending for the U.S. Court of Appeals for the Fifth Circuit, the nomination of a local State judge in Mississippi named Leslie Southwick. I came to the Southwick nomination with no advance knowledge of the man or anything he had done. I truly had an open mind. I attended his nomination hearing and tried to give him the benefit of the doubt. Today I am sorry to report I have only doubt about his appointment to this lifetime position. There are too many questions about whether Judge Southwick would bring a measure of fairness in cases involving civil rights and the rights of ordinary people in his court. This perception as to whether he will be fair or evenhanded is determinative in my mind. Whether you agree with that perception, it is there.

It is sad but accurate to report that Judge Southwick has lost the confidence of the civil rights community in the State of Mississippi and across the Nation. There is one case I wish to mention which may help explain why this has occurred. The case is called Richmond v. Mississippi Department of Human Services. Because of the wording in the case, it is unfortunate, I will be unable to read it into the RECORD; it would be inappropriate. But suffice it to say, in this 1998 case, the Mississippi State Court of Appeals ruled 5 to 4 to reinstate and give back pay to a White employee who had been fired for calling a Black employee the ``N'' word. Judge Southwick was in the five-person majority and thus was the deciding vote in that case.

Here is the background. The plaintiff, Bonnie Richmond, was a White employee who worked at the Mississippi Department of Human Services, a State agency with a 50-percent African-American workforce. After referring to an African-American colleague as a ``good ole'' ``N'' word, Bonnie Richmond, the white employee, was fired. She appealed her termination and was successful. A State hearing officer reinstated her. That decision was affirmed by the full Mississippi Employee Appeals Board, then reversed by the State court trial judge. Judge Southwick's court reversed it again, ruling for the White employee who had used the offensive racial epithet. Finally, the Mississippi Supreme Court weighed in. 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, Bonnie Richmond.

Mr. Southwick's defenders point out that he didn't write the opinion he signed on to. That is certainly true. But he didn't have to sign on to it, if he didn't agree with it. He could have filed a concurrence agreeing in the judgment but not the reasoning. He chose not to do so. The opinion Judge Southwick signed stated that the White employee who used the ``N'' word in this case ``was not motivated out of racial hatred or animosity directed toward her co-worker or toward blacks in general.''

I don't believe that is a mainstream view in America. I don't believe it is a mainstream view to say that the ``N'' word is ``not motivated out of racial
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hatred or animosity.'' The Southwick majority also affirmed the determination of the hearing officer who said the use of the term good old ``N'' word was intended to mean a ``teacher's pet'' and was in this context about as offensive as calling someone ``a good old boy or Uncle Tom or chubby or fat or slim.'' Again, is that a mainstream view in America?
Recently a civil rights organization had a symbolic ceremonial burial for the ``N'' word, saying it is time it be removed from the American language, it is so offensive. For someone in Judge Southwick's court to be so dismissive of this term is truly to be insensitive. I don't believe the opinion which Judge Southwick signed on to reflected the type of racial sensitivity we need in a Federal judge.

The dissent in the case was eloquent and powerful. It said:
The [``N'' word] is, and has always been, offensive. Search high and low, you will not find any non-offensive definition of this term. There are some words, which by their nature and definition are so inherently offensive, that their use establishes the intent to offend.

I certainly agree with that powerful dissent. I am sorry Judge Southwick does not.

At his May 10, 2007 hearing, Judge Southwick was asked if he still stood by his vote in that case.

He said he did. I find that very troubling.

This is particularly important given the context of this nomination. This Fifth Circuit covers the States of Mississippi, Texas, and Louisiana. Those three States have the largest percentage of minority residents of any Federal circuit in America--44 percent. The State of Mississippi has the largest percentage of African Americans of any State in the Union--36 percent.

There are 19 judges on the Fifth Circuit. Of those 19, only one is African American. That would be Judge Carl Stewart of Louisiana.

Now, some have suggested that recent nominees to the Fifth Circuit reflect a deliberate design to protect this imbalance. Others say it is a conscious disregard of the obvious unfairness. The most generous view is that it is only a coincidence.

Two previous nominees to this Fifth Circuit seat--Charles Pickering and Michael Wallace--were not confirmed because of their anti-civil rights backgrounds.

Judge Pickering had unethically tried to lower the prison sentence for a convicted cross burner. Mr. Wallace defended the discriminatory policies of Bob Jones University and was so notorious for his hostility to civil rights that the American Bar Association gave him a rating of ``not qualified.''

The Southwick nomination has become a controversial nomination, with more focus than any other current circuit court nomination I can think of on the racial issue. Time and again, the nominees sent by the White House to the Senate Judiciary Committee fail the most basic test as to whether they will fill this lifetime position on the Federal bench and rule fairly on issues involving race.

It is critical that members of the Fifth Circuit have an open mind when it comes to issues of race. In a letter sent to the Judiciary Committee, the Congressional Black Caucus opposed the confirmation of Judge Southwick and said: Our Caucus is most concerned about Mr. Southwick's ability to afford equal justice under law in the Circuit where racial discrimination has always been most pronounced.

In another letter of opposition sent to the Judiciary Committee, the NAACP, the NAACP Legal Defense Fund, National Urban League, and the Rainbow/PUSH Coalition said: This position is a lifetime appointment. If confirmed, Southwick will often provide the final word on the civil rights of millions of minority residents within the Fifth Circuit.

Historically, there have been some judicial giants in the Fifth Circuit who have served with great courage. Alabama used to be part of that Circuit. A few years ago, I went to Alabama for the first time as a guest of an organization known as the Faith and Politics Institute on Capitol Hill. It is a bipartisan group, and it tries to blend some views toward values with political decisions.

Under the leadership of John Lewis, the Congressman from Atlanta, GA, who was a pioneer in the civil rights movement, we went down to visit some of the key places where the civil rights struggle occurred.

We went to Birmingham and Montgomery and Selma, AL. I had to leave a little early, and so it appeared I would not have a chance to visit the Edmund Pettus Bridge, the notorious bridge where the march from Selma was stopped with violence. John Lewis, typical of what a fine person he is, said: I will get up extra early Sunday morning. I will drive you over there. You and I will walk across the bridge together.

Well, Senator Sam Brownback joined us, and I am sure Senator Brownback felt as I did, that it was an extraordinary day. That early, cool Sunday morning, John Lewis took us across that bridge and showed us the point where he had been clubbed and almost killed, as he tried to walk on that civil rights march.

I will never forget that scene. As a college student, I thought that maybe I could be there at that march. As luck would have it, I was not. I have regretted it ever since. But to be there that moment with John Lewis a few years ago really was a touching experience.

As we were driving back from the Edmund Pettus Bridge, John Lewis said to me: Do you know who the real hero was that day? It was Federal Judge Frank Johnson of Alabama. Johnson ordered the integration of Montgomery buses after Rosa Parks' protest in 1956, and he was the one who allowed that march in Selma to take place. Because of Judge Johnson's courage, he was shunned by his community, ostracized. His mother's home was bombed. He was threatened many times because of his courage when it came to the issue of civil rights.

So when we speak of the Fifth Circuit, and its history, and Federal judges, I think of Frank Johnson and what he meant to America's history because of his courage.

At Judge Southwick's nomination hearing, I wanted to be fair with him, and I asked him a question which was maybe one of the easiest questions you could ask of a nominee. I asked him to name a single time in his career or in his life when he took an unpopular point of view on behalf of the voiceless or powerless. He could not name a single instance.

I thought, perhaps that was not fair. The judge should be allowed to reflect on that question. I will send it to him in writing and ask him: Was there a time in your life when you sided, for example, with a civil rights plaintiff when your court was split? He could not name a single case in his judicial career.

There has been a heavy focus placed on Judge Southwick's votes in the so-called ``N'' word case--which I have discussed--and a custody case in which he voted to take an 8-year-old girl away from her lesbian mother.

I disagree with Judge Southwick's position in these cases. I think, sadly, they show an inclination toward intolerance and insensitivity. But I am sympathetic to the argument that these are only two cases out of thousands in which he has taken part. However, it is not the end of the story.

A business group in Mississippi looked at 638 cases during an 8-year period of time and rated Judge Southwick as the judge on the Mississippi Court of Appeals most likely to rule against common, ordinary people, employees suing their employers. Another study showed he voted with companies and employers, businesses and powerful interests, in 160 out of 180 cases in which there was a split decision.

Many groups that do not normally take a position on a Federal judge have spoken out against Judge Southwick. There are many positive things about this judge's life. He has served his country. He has served in the military. And I am sure he has done many good things. But when a Senator has to make a decision about a lifetime appointment to a critical circuit court position, in a controversial area, where we have had a string of controversial nominees, you have to take that very seriously.

There is just too much doubt about whether Judge Southwick will have an open mind when it comes to civil rights and the rights of ordinary people in his court, and that is why I will oppose him if he comes before the Judiciary Committee.
A final word. Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, has said he will
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call Judge Southwick for a vote whenever Senator Specter and the Republican minority want his name to be called. I do not know how my colleagues on the Democratic side will vote. I know many of them share my misgivings.

Judge Southwick has had a hearing, which is more than can be said for many nominees from the Clinton administration--over 60 judicial nominees were bottled up in the Senate Judiciary Committee during those years, never even given the dignity or courtesy of a hearing and vote. Judge Southwick had his hearing. He had his opportunity to speak and answer questions, unlike dozens of Clinton nominees who never had that chance.
Now his record is there for everyone to view, and his name is there if the Republicans decide they wish to call him for a vote. This is not obstructionism. This is the process as it should work. I urge my colleagues, particularly from the State of Mississippi, if Judge Southwick does not prevail, I hope they will be able to find in that great State someone who can be brought to this nomination who will not incur the wrath and doubt that Judge Southwick has over his decisions and over his testimony before the Senate Judiciary Committee.

Mr. President, I yield the floor.

....

Mr. CORNYN. Mr. President, I would like to, if I may, turn to one other issue; and that has to do with the nomination of Judge Leslie Southwick.

I heard the distinguished Democratic whip, majority whip, speak to the Southwick nomination earlier, and I wish to make sure, in fairness, there is a complete consideration of the facts.

Of course, Judge Southwick, the nominee to which the majority whip objects, has been given the highest marks by his peers for the qualities of fairness and compassion by both the Mississippi Bar Association and the American Bar Association on two occasions, both when he was nominated to serve as a Federal district judge and now with his nomination to the Fifth Circuit.

Regarding Senator Durbin's concerns, of course, as a member of the Judiciary Committee, he voted to confirm Judge Southwick to a lifetime Federal bench. So I wonder why, now that he has been nominated to the Fifth Circuit, those concerns have arisen when, in fact, there were no such concerns expressed when Judge Southwick was nominated and confirmed unanimously by the Senate Judiciary Committee to the Federal district bench.

I heard Senator Durbin criticize Judge Southwick for his participation in the case of Richmond v. Mississippi Department of Human Services. The fact of it is, Judge Southwick did not write the opinion Senator Durbin is critical of. Of course, as a judge, unlike a legislator, a judge has no choice but to vote. He voted for the result, for the outcome of the case, but I think it is unfair to attribute the writing of the opinion to Judge Southwick, something he did not write.
Of course, we all deplore the racial slur which was the subject of that opinion. The board determined, from the evidence before it, that the racial slur was an isolated comment, was made outside of the target's presence, was
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followed by an apology--which I think is significant--which was accepted and did not result in significant disruption of the workplace.

Under Mississippi law, the board's ruling could only be reversed if it was ``arbitrary and capricious, accepting in principle the notion that a decision unsupported by any evidence is by definition arbitrary and capricious.''

The court of appeals majority, including Judge Southwick, operating under a highly deferential standard of review--which is applied in the case of agency decisions routinely--upheld the board's decision and found that there was some evidence to support the board's ruling that the isolated comment did not sufficiently disturb the workplace so as to justify the employee's termination.

The majority made clear it did not endorse or excuse the slur. They said:

We do not suggest that a public employee's use of racial slurs ..... is a matter beyond the authority of the employing agency to discipline.

In other words, they said it would be appropriate to discipline a person for using racial slurs.

Of course, Judge Southwick reiterated his disdain for the use of any racial slurs and has repeatedly told the committee that the use of the word at issue is--in his words--``always offensive''--I would hope we would all agree with that--and ``inherently and highly derogatory.'' At the hearing he said: ``There is no worse word.'' He said it was ``unique'' and that he could not imagine anything more offensive.

In response to a written question from Senator Durbin, Judge Southwick wrote:

Use of this word is wrong, improper, and should offend everyone regardless of the speaker's intent.
I agree.

As a legal matter, the Supreme Court of Mississippi explicitly agreed with the appellate court's conclusion that dismissal was unwarranted. That was the appeal from the Court of Appeals to the Supreme Court of Mississippi. The supreme court said:
In this case, we find that the harsh penalty of dismissal of Bonnie Richmond from her employment is not warranted under the circumstances.

We can agree or disagree with the decision made by the board that reviewed that. We can agree or disagree with the decision of the court of appeals. But I do not know why, after the American Bar Association--the professional organization that reviews Federal nominees--after they have reviewed Judge Southwick's record, including his participation in that decision, and found him to be highly qualified, why we would come back and try to besmirch his reputation as a part of trying to defeat this nomination.

I am sure there will be more discussion about Judge Southwick as we go forward. I hope we are not heading down a very dangerous path again, which is to deny this President's nominees--or any President's nominees--an opportunity for an up-or-down vote. Right now, I know the senior Senator from Mississippi, Mr. Cochran, has been talking to the chairman of the Judiciary Committee, and the chairman has offered a vote for Judge Southwick's nomination in the committee.

But right now Judge Southwick is continuing to have consultation with members of the committee, in hopes he can get an up-or-down vote in the committee and then hopefully come to the floor where we can have a debate which will cover the whole range of Judge Southwick's qualifications and his resume and his record so the Members of the Senate can fairly ascertain for themselves whether he should be confirmed and then have an up-or-down vote.

But right now I hate to see Judge Southwick unfairly criticized by attributing to him something he did not even say, by joining an opinion which was ultimately upheld by the Mississippi Supreme Court in compliance with appropriate legal standards. That is what judges do. They do not decide winners and losers and then try to justify the result. They apply the law impartially to everyone who comes before them. From all appearances, Judge Southwick has been true to that requirement and that great tradition of our judiciary.
I yield the floor.

....

Mr. SPECTER. Mr. President, I have sought recognition to reply to a floor statement made earlier today by the senior Senator from Illinois concerning the pending nomination of Judge Leslie Southwick for the Fifth Circuit Court of Appeals.
The Senator from Illinois asserted that ``there are too many questions about whether Judge Southwick would bring a measure of fairness in cases involving civil rights and the rights of ordinary people in his court.'' But in the course of the speech of the Senator from Illinois, he only raised one question. That one question was about a specific case.

The Senator from Illinois went on to say:
This perception as to whether he will be fair or evenhanded is determinative in my mind. Whether you agree with that perception, it is there.
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I begin by disagreeing categorically with the Senator from Illinois that it is a matter of perception. It is a matter of fact. When he says this perception as to whether he will be fair or evenhanded is determinative, I disagree strongly. What is determinative is what are the facts of his record taken in totality.

The one question which the Senator from Illinois has raised involves a case where the Mississippi intermediate appellate court upheld a finding by an administrative board that an employee should not be fired under the circumstances which I will now describe.

The employee had made a racial statement which was a one-time comment. The slur was not in the presence of the targeted coworker. The employee apologized to the coworker. The coworker accepted the apology. The incident did not produce any significant workplace disruption.

The administrative board then made the determination that the incident did not warrant dismissal of the employee. The question then presented to the court on which Judge Southwick sat, the intermediate appellate court, was whether the finding by the administrative board was arbitrary and capricious; that is, whether there was sufficient evidence for them to find to that effect.

When Judge Southwick testified before the Judiciary Committee, he was emphatic in his statement that the slur was unacceptable, that he did not agree with that kind of conduct, and that it was the worst kind of word to use--the so-called ``N'' word--but that his role as an appellate judge was to make a legal determination on whether there was sufficient evidence to uphold the decision or whether the administrative board was arbitrary and capricious.

The Senator from Illinois then said that the Mississippi Supreme Court unanimously reversed the majority opinion. But, the fact is--and this is implicitly acknowledged by the Senator from Illinois--that the only reversal was on the very narrow ground of whether there had been sufficient findings by the administrative board to come to its conclusion.

The Mississippi Supreme Court agreed with the Mississippi intermediate appellate court that dismissal was an inappropriate remedy. That was really the core of the case. But the State supreme court said there ought to be more facts stated by the administrative board in coming to that conclusion, which was a highly technical modification as to what the appellate court had said.

The Senator from Illinois further made a very brief reference, a one-sentence reference, in his speech, to a custody case in which ``he voted to take an 8-year-old girl away from her lesbian mother. I disagree with Judge Southwick's position in these cases.'' That is the only thing he had to say about the custody case which has been cited against Judge Southwick.

Here again, as in the case involving the racial slur, Judge Southwick did not write the opinion. He concurred in the opinion. I think fairly stated as a legal matter, when someone writes the opinion, there is full responsibility for everything in it. In a sense, one might say the same thing about someone who concurs. That person could write a separate concurring opinion. But unless there is something extraordinarily wrong, out of line, that is not a common practice.

In the second case to which the Senator from Illinois referred--only one sentence--there were many factors which led to the award of custody to the father, such as he had a steady job, he had a higher income, he owned a large residence, and he had roots in the community. Although the Senator from Illinois did not refer to one sentence in the opinion--again, which Judge Southwick did not write but concurred in--there was a reference to a ``homosexual lifestyle'' which has been used frequently, including the Lawrence v. Texas decision. It is perhaps not the most sensitive kind of language, and perhaps there could have been a substitution for it, but it certainly does not rise to the level of a disqualifier.

The Senator from Illinois has said that Judge Southwick could not be fair to run-of-the-mill litigants in the courts and cited a couple of studies, which are not identified, which do not specify any authors, and on their face, in the statement by the Senator from Illinois, I think fairly stated should be entitled to really very little, if any, weight. But let's take a look at some of the specific cases that Judge Southwick has decided.

In a case captioned McCarty Farms Inc. v. Caprice Banks, Judge Southwick affirmed an award of permanent partial disability benefits for a woman who experienced a 70-percent industrial disability to her right arm and a 30-percent loss to her left. However, Judge Southwick wrote separately to argue that injured workers deserve more evidentiary options to prove damages.

He would have instructed the court to consider wage-earning capacity as well as functional or medical impairment.
In the case captioned Sherwin Williams v. Brown, Judge Southwick held a 45-year-old carpet layer was permanently and totally industrially disabled due to an onsite injury and that the carpet layer made reasonable efforts to obtain other employment. Judge Southwick concluded he was entitled to permanent total disability benefits.

In a case captioned United Methodist Senior Services v. Ice, Judge Southwick affirmed the award of workmen's compensation benefits to a woman who hurt her back while working as a certified nursing assistant, despite her first employer's claim that she exacerbated the injury during her subsequent employment. In addition, Judge Southwick recognized that the evidentiary standard the employer sought to impose would have prevented many plaintiffs from receiving compensation for a work injury.

In Kitchens v. Jerry Vowell Logging, Judge Southwick reversed the Workers Compensation Commission's decision that a truck driver from a logging company did not suffer a permanent loss of wage-earning capacity, and remanded the case for further consideration.

In Total Transportation v. Shores, a 6-to-4 decision, Judge Southwick joined the other three dissenters, who would have upheld an award of workmen's compensation benefits for a truck driver's widow where the majority ruled in favor of the employer.

In Burleson v. Hancock County Sheriff's Department, a 6-to-3 decision, again Judge Southwick joined in dissent, arguing that a public employee was unconstitutionally fired, while the majority ruled in favor of the employer.

Similarly, Judge Southwick has ruled numerous times in favor of tort victims and against businesses. In Ducksworth v. Wal-Mart Stores, Judge Southwick voted to reverse a trial court's verdict against a customer who had slipped on an unknown substance at Wal-Mart.

In Breland v. Gulfside Casino Partnership, Judge Southwick voted to reverse summary judgment for a casino in a slip-and-fall action brought by a patron who had suffered multiple injuries falling down a casino staircase.

In Martin v. B. P. Exploration & Oil, Judge Southwick voted to reverse summary judgment against the plaintiff, who injured her ankle upon exiting a gas station's restroom on an allegedly poorly constructed access ramp.

In Wilkins v. Bloodsaw, Judge Southwick voted to reverse a grant of summary judgment in favor of a Pizza Hut which was sued by a mother who was injured when her disabled son fell as she tried to help him exit the restaurant.

Similarly, Judge Southwick has voted in favor of criminal defendants on numerous occasions, often in dissent. For example, in Jones v. State, a 5-to-5 decision, Judge Southwick dissented, arguing for reversing a conviction because the indictment did not provide the defendant with sufficient clarity to know with certainty what crime was being charged.
In Parker v. State, Judge Southwick dissented, arguing that a murder conviction should be reversed because the trial judge failed to give a proper jury instruction.

In Mills v. State, a 6-to-3 decision, Judge Southwick dissented from the majority, affirming a drug conviction on the grounds that the court should not have admitted a statement by the defendant's 4-year-old son, and the State failed to disclose a piece of evidence against the defendant that it had in its possession.

In Harris v. State, a 5-to-4 decision, Judge Southwick dissented from the majority opinion, affirming a drunk
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driving conviction on the grounds that the trial court erroneously allowed the State to avoid proving all the elements charged in the indictment.

In Hughey v. State of Mississippi, Judge Southwick affirmed the trial court's decision to disallow cross-examination as to the victim's sexual preference, recognizing that whether the victim was homosexual was not relevant to the defense, and that such a line of inquiry could produce undue prejudice.
This Hughey v. State of Mississippi case, where Judge Southwick excluded a victim's sexual preference, is a strong indication--much stronger than the one line in the argument by the Senator from Illinois--concerning the issue of a ``homosexual lifestyle.''

There are also testimonials, and I will offer two. La'Verne Edney, a distinguished African-American woman partner in a prominent Jackson, Mississippi, law firm, a member of the Magnolia Bar Association, the Mississippi Women Lawyers' Association, and a member of the Mississippi Task Force for Gender Fairness, has shared her compelling story of Judge Southwick, who gave her an opportunity when few would. This is what she said, and I quote:

When I finished law school . . . I believed that my chances for landing a clerkship were slim because there was only one African-American Court of Appeals judge on the bench at the time and there were very few Caucasian judges during the history of the Mississippi Supreme Court or the Court of Appeals . . . who had ever hired African-American law clerks....... While Judge Southwick had many applicants to choose from, he saw that I was qualified for the position and granted me the opportunity.

Ms. Edney further observed:

It did not matter the parties' affiliation, color or stature--what mattered was what the law said and Judge Southwick worked very hard to apply it fairly. Judge Southwick valued my opinions and included me in all of the discussions of issues presented for discussion. Having worked closely with Judge Southwick, I have no doubt he is fair, impartial, and has all of the other qualities necessary to be an excellent addition to the United States Court of Appeals for the Fifth Circuit.
Now, contrast what Ms. Edney said, a prominent lawyer engaged in all of the advocacy groups--gender fairness, women trial lawyers, Magnolia Bar--compare that to the opinion of Judge Southwick in one case, where he joined in a concurring opinion, where there was a racial slur immediately apologized for, with what this woman, who was his law clerk, found in a very detailed relationship showing fairness and justice.
Patrick E. Beasley, a practicing attorney in Jackson, Mississippi, who also happens to be African-American, endorsed Judge Southwick for, among other qualities, his fairness to minorities. This is what Mr. Beasley had to say:

I speak from personal experience that Leslie Southwick is a good man who has been kind to me for no ulterior reason. I am not from an affluent family and have no political ties. While I graduated in the top third of my law school class, there were many individuals in my class with higher grade point averages and with family ``pedigrees'' to match. Yet, despite all of the typical requirements for the clerkship that I lacked, Judge Southwick gave me an opportunity. Despite all the press to the contrary, Judge Southwick is a fair man and this is one of the qualities that makes him an excellent choice for the Fifth Circuit Court of Appeals.

Mr. SESSIONS. Mr. President, will the Senator yield for a question?

Mr. SPECTER. No. But I will be glad to respond to the Senator from Alabama when I finish my speech. I will be glad to respond to him at length.

The overall record--I have changed my mind. I will yield for a question.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. SPECTER. Maybe the Senator from Illinois will change his mind, too.

Mr. SESSIONS. Mr. President, for the first time, on the question of Judge Southwick's ruling, the Senator's remarks make clear to me that he was required as a judge, as I understand it, to not reverse the administrative panel's opinion unless it was arbitrary and capricious, I believe is what the Senator said.

It seems to me that sometimes we make a mistake, and I was going to ask the Senator a question, as one of the most able lawyers here in this body for sure, about whether he thinks sometimes we ascribe to the judge who has to rule on a case following the law, that somehow we would suggest he may have approved this racial slur even though he may have ruled in a way different from that?

In other words, does the Senator think we ought to be careful in this body not to unfairly suggest that the judge approved this racial slur, which I know he did not, as a result of that ruling?

Mr. SPECTER. Mr. President, the question posed by the distinguished Senator from Alabama is illustrative of the unfairness of citing that case against Judge Southwick, because he did not sanction the slur which was uttered.
In fact, the administrative review board did not sanction the slur. The administrative review board had only the question to decide as to whether that was grounds for permanent dismissal. That is the only question they had to decide. And then when the case came before the Mississippi intermediate appellate Court, as the Senator from Alabama has noted, that court had only to decide whether the ruling by the administrative review board was arbitrary and capricious, which means that there was insufficient evidence to sustain it.

So Judge Southwick is removed by two major barriers from any conceivable approval of a racial slur: first, on the fact that the administrative board said it was bad, Judge Southwick said it was bad; and, in addition, there was sufficient evidence for the administrative board to find what it did.

Now, on the critical question as to whether there were any grounds for permanent dismissal because of what was said, everybody said no--that is, the administrative board, the intermediate appellate court, and the State Supreme Court--contrary to the bland assertion by the Senator from Illinois that the intermediate appellate court was reversed. The Supreme Court said everybody is correct, there are not grounds for permanent dismissal, but we think the administrative board should have given more details as to the reasons why it came to that conclusion.

Mr. SESSIONS. Mr. President, I thank the Senator for his effort and the time it takes to be able to examine the complexities of this situation. Most of us are too busy to do it. You do indeed have a passion for the truth, and you have done well in getting there, and I thank you for sharing those thoughts with us.

Mr. SPECTER. Well, I thank the Senator from Alabama for complimenting me for my passion for truth. It so happens that is the title of the book I wrote--Harper Collins, available online.

Back to the case, though, Mr. President, and I will be brief here. I would point to Judge Southwick's overall record. It is an excellent record: cum laude from Rice, J.D. from the University of Texas Law School, clerk for the Court of Appeals for the Fifth Circuit, an adjunct professor in the Mississippi College of Law, unanimously well qualified by the American Bar Association.

And then an extraordinary thing. When he was in his fifties, he volunteered to go to Iraq in the Judge Advocate General's Corps, and was in areas with very heavy fighting. He interrupted a 12-year service on the Mississippi appellate court to do that. That is an extraordinary act, really extraordinary, for somebody in his position to do.
I sat down with Judge Southwick at some length to talk to him, and he is an enormously impressive man. He is very mild mannered. He has been on the court, as I say, for 12 years. He has participated in 6,000 cases, he has written 985 opinions, and all they can extract out of this record is one case which, as the colloquy with the Senator from Alabama points out, doesn't establish a peppercorn. That is a legal expression for being practically weightless in terms of what their objections are.

The Senator from Illinois then went through the history of the last two nominees who were shot down.

I have a reputation and a record to back it up, to have supported President Clinton's nominees, crossing party lines, when they were qualified.

The Senator from Illinois makes it a point--not that it has anything to do with this case--that the Republicans didn't give 70 of President Clinton's nominees a hearing.
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That was wrong. That was wrong. But what we are doing here is we are visiting on Judge Southwick somebody else's sins. If I thought he was not qualified, I wouldn't be taking the lead that I am in this case.

When we go through these issues, it is reminiscent of the very contentious controversy which was raised on this floor in 2005 when the Democrats were filibustering judges in retaliation for what had happened during the Clinton years and the Republicans were threatening the so-called constitutional or nuclear option. We ought not go back to those days.

When you have a man with the record of Judge Leslie Southwick, he is being picked on. With the extensive record he has, to cite one case and to talk about perception--I repeat, when the Senator from Illinois says that perception is determinative, I say that this body ought to vote on the facts.

I am pleased to see that a number of Democrats are interviewing Judge Southwick, and I believe they will find him to be very impressive, as I did. I strongly urge my colleagues to look at the facts very carefully. The Senate should not function on perception. The Senate should not function on what somebody else concludes or believes. We ought not do that. We ought to look at the record and make the decision in fairness to this man and in fairness to the entire process of confirmation of Federal judges.

I yield the floor.