Leslie Southwick

I hadn't heard about this nominee: "Judge Southwick’s judicial record also shows the usual pattern of President Bush’s judicial nominees: insensitivity toward workers, consumers and people injured by corporations." Southwick did, however, find at least one case in which he chose to side with an employee rather than an employer, a case in which he "he ruled for a social worker who was rightfully fired for calling a black colleague 'a good ole nigger.'" He also "denied a bisexual mother custody of her child" and "joined a concurring opinion that went on to berate the mother for her 'decision to participate in a homosexual relationship' and reminded her that one of the consequences of her 'exertion of her perceived right' was that she might lose her child."

People wonder sometimes why compassionate conservatism hasn't done more to attract black voters over to the GOP side. More here and here (PDF).

Comments

"why compassionate conservatism hasn't done more to attract black voters"

it's baffling, isn't it? especially since it makes such a change from the earlier version of conservativism, in which he would have been called a "bad old nigger".

Posted by thag | June 5, 2007 8:31 AM

I'm especially impressed with the "perceived" right to engage in a consensual relationship with another adult.

Posted by justin | June 5, 2007 10:36 AM

"People wonder sometimes why compassionate conservatism hasn't done more to attract black voters over to the GOP side."

What people wonder?

Posted by CJColucci | June 5, 2007 11:24 AM

I'm very amused by this - "insensitivity toward workers, consumers and people injured by corporations". Nevermind the law and facts! He displayed Insufficient Sensitivity! I think it's time to ship someone off to re-education camp.

Posted by Homer | June 5, 2007 12:10 PM

(Written after an initial comment that was "held for approval," due presumably to its having links.)

Re: the "bisexual mother" op, it's noteworthy that Southwick joined a concurrence by a relatively *liberal* member of the Court, Mary Libby Payne, its first-ever female member and one of the first female appellate judges in the state. Payne's dissent set forth that the Miss. Legislature was pretty clear on disapproving of homosexuality, so that the "public policy" of the state was clear & no basis for a "public policy" ruling that homosexuality was of no import. The part "berating the mother" was actually rebutting the dissent's argument from individual right to choose.

As the S.B. majority noted, controlling Miss. law allowed a parent's homosexuality to be *a* factor, tho not a *controlling* factor. Southwick was on the intermediate appellate court, which does not get to ignore binding precedent from the state supreme court. The COA simply could not *reverse* the trial court's ruling where the trial court followed the law, however obnoxious that law was.

In short:

(1) Southwick's "offense" was to be an intermediate appellate judge, bound to apply the law as it stood;

(2) the misrepresentations re: Southwick are thick on the ground. Find the actual opinions and read them; don't rely on a partisan summary.

Posted by Anderson | June 5, 2007 12:18 PM

Anderson, those specific examples aside, what's Southwick's reputation w/ the local bar?

Posted by JP | June 5, 2007 12:20 PM

Anderson, those specific examples aside, what's Southwick's reputation w/ the local bar?

"Smart as a whip." I've never heard a bad word about him (as opposed to Wallace). A Southwick opinion was one where you would make sure to mention his name in citing it to the state supreme court.

Undoubtedly, he is quite conservative, but I wouldn't expect Bush to appoint a *non*-conservative.

As I wrote in the "pending approval" post, Southwick and Pickering have been victims of Bush's failure to appoint any blacks to the federal bench in Miss. But instead of rejecting the nominee on *that* basis, the kabuki machine has to accuse the *nominee* of racism, which was blatantly silly in Pickering's case, and apparently unjustified in Southwick's case.

You can search my blog for Southwick & get some more on the subject, if you're curious. I'm running against type on this -- I'm a yellow-dog Bush-hatin' Democrat -- but I think this whole mess has been really unfair to Southwick, and that the kabuki b.s. is raising tempers & thus making it harder to discuss the real issues.

Posted by Anderson | June 5, 2007 12:29 PM

Anderson I think the issue that those of us see is not that Southwick's legal reasoning were out of bounds. Yes, in the bisexual mother's case he joined another judge's opinion. That said the decision he wrote ALSO said there was consequences for being a bisexual. He was making both a legal and a moral judgement on the defendent. I think one can find that honestly in poor taste if not also poor legal judgement if you wanted to disagree (also) with Missouri state legislature. (A judge can choose to apply a law he disagrees with but signal in his decision why he feels the law is unfair.)

Moreover in the case with the racial slur, like Pickering, when a judge normally is very blase about the rights of workers or people with civil rights violations...but when he DOES find a sympathic defendent and it just happens to be someone accused of a racial indicent, it makes others take notice. The judge has less sympathy for people of color but MORE sympathy for whites accused of committing offenses against those of color.

The issue is the pattern of behavior. If Southwick was more sympathic to employee unfair termination cases in general, then perhaps this particular incident involving dismissal over a racial slur, could be understood as part of his legal theory. But he's NOT sympathic to employee lawsuits against employers. So why this one? Well it's hard not to see that he just doesn't think racial slurs are a big deal. And it's not about "thought police" or political correctness. It's about behavior in a workplace setting.

Posted by NewsCat | June 5, 2007 1:01 PM

Anderson I think the issue that those of us see is not that Southwick's legal reasoning were out of bounds. Yes, in the bisexual mother's case he joined another judge's opinion. That said the decision he wrote ALSO said there was consequences for being a bisexual. He was making both a legal and a moral judgement on the defendent. I think one can find that honestly in poor taste if not also poor legal judgement if you wanted to disagree (also) with Missouri state legislature.

As Anderson's fellow yellow dog dem, I strongly disagree with the above. To the extent there was a "moral" judgment, it had already been made by the Ms. legislature - what you are asking for is essentially the same kind of 'legislation from the bench' that conservatives routinely, (and usually fallaciously) prattle on about.

Just think about your reaction if some guy like Roy Moore "signaled his disapproval" with any number of decisions/statutes with which he disagreed, and you'll see why that is probably not behavior we want to encourage.

Posted by Pooh | June 5, 2007 1:51 PM

Anderson I think the issue that those of us see is not that Southwick's legal reasoning were out of bounds. Yes, in the bisexual mother's case he joined another judge's opinion. That said the decision he wrote ALSO said there was consequences for being a bisexual. He was making both a legal and a moral judgement on the defendent.

Context. The dissent was arguing that individual liberty includes liberty to choose one's sexual partner, same sex or not. Payne's concurrence observed that, choice or not, the law was clear that homosexual conduct was a potential black mark in custody decisions. Have you read the concurrence?

http://www.mssc.state.ms.us/Images/Opinions/Conv10169.pdf

As for the racial-slur bit, my comment on that hasn't been vetted by Yglesias or his bevy of scantily-clad Atlantic internettes, so I'll refer you to my blog link & you can search for Southwick & see what I had to say about that. Short answer: the decision had nothing to do with the employee's being "sympathetic" and much more to do with the legal standard of review.

Moreover, this was not a typical "employee lawsuit"; it was an appeal of a state agency's termination of an employee, so totally different caselaw applied.

All this dry lawyer stuff isn't very sexy, but it's what good judges have to attend to, and I'm disappointed beyond words that the Democrats' stance on Southwick has been "release the flying monkeys!"

Posted by Anderson | June 5, 2007 1:53 PM

I know this makes me a horrible person, but i kind of hope that Anderson is right ... and that Southwick is rejected for exactly these incidents. If the Dems can't learn to gin up fake controversies in the pursuit of real goals, there's really no hope for them.

Posted by lemuel pitkin | June 5, 2007 2:26 PM

You're right, Lemuel, that *does* make you a horrible person .... ;)

But really: the Dems don't help themselves by playing into the conservative stereotype of themselves; there's a real person involved here, Leslie Southwick, who doesn't deserve to be tarred as a racist homophobe; and this nonsense is actually HURTING the chances of addressing the real issue.

I think if the Dems want to oppose, they need to do so like this: "Judge Southwick is surely a fine man and a fine judge. But we've yet to see one black nominee in 6 years from Mississippi, and it's time to draw the line. Before we'll vote on Southwick, we want to see *whom* the White House has considered, and we want to know *which* blacks from Mississippi the White House thinks are qualified for the federal bench. Every time we agree to give Bush a pass, he comes back with yet another white nominee."

I know personally of one qualfied black applicant for the federal district court in Mississippi, for a still-open seat. And there's legislation pending to increase the # of federal district judges in Miss. So it's time to start having the real conversation about the real issues, instead of this flying-monkey b.s.

Posted by Anderson | June 5, 2007 2:39 PM

Maybe Bush has given up on his previous attempts to pander to blacks. It was a stupid idea anyway. If 90% of blacks want to vote for Dems, let them. Instead of backing affirmative action at U. of Michigan and appointing several blacks to his cabinet, Bush should have appointed an Indian- or Korean-American. It would have been easier to find qualified candidates among those groups, and it would been more effective symbolism.

Then Bush could have throttled back on his support of importing poor Mexicans and focussed on bringing in more high-achieving South and East Asians. If only Bush had a half Korean or half-Indian nephew...

Posted by Fred | June 5, 2007 2:44 PM

Maybe Bush has given up on his previous attempts to pander to blacks.

Which were those? Can you name both of them?

Posted by Anderson | June 5, 2007 2:56 PM

I don't know if "Anderson" is right about this, but he's sure a lot more convincing than those willing to believe the Time's summary, which makes no reference at all to the law.

Posted by ed | June 5, 2007 3:10 PM

Admittedly in my attempts to response to Anderson it looks like I'm arguing for "legistlating from the bench" (which...whatever).

However "law was clear that homosexual conduct was a potential black mark in custody decisions."

Except that wasn't Southwick's as an appeals jurist that he could have found Missouri's law unconstitutional?

Okay, I'll give, I haven't gotten into the legal argument as much as maybe I should, but my reading of the arguments is that Southwick isn't being branded unfairly. He *is* supportive of homophobia-based descrimination in the law. He does not find that to be unconstitutional.

As for whether the Missouri legistlature reads as being willing to discriminate against homosexuals, a) I'll trust that's what Missouri legislature actually intended to say b) I still question whether such a reading by a state legistlative body can be constitutional based on both the state constitution and the federal.

Yes it's a he's a conservative and he rules that way. Why is that not a legitmate reason to oppose his nomination? I'm not willing to allow the Republican party to define what is "acceptable" objections of jurists...because obviously they would NEVER find any nominee properly "objectionable."

Posted by NewsCat | June 5, 2007 3:41 PM

(1) We're talking Mississippi, not Missouri. (Enough said?)

(2) Southwick was on the court of appeals, which is an *intermediate* court, beneath the state supreme court. It is absolutely bound by existing supreme-court precedent. So no, Southwick couldn't find the law unconstitutional, even assuming that issue was presented (which I doubt). The concurrence he joined was largely devoted to making that point, against the dissent.

(3) Opposing Southwick for *being conservative* is fine, but there are tactical reasons why Dems don't want to do this. It's still iffy to object to a nominee on purely ideological grounds, esp. when it's to an intermediate appellate court like the 5th Circuit. You can bet that Dems would not want a Republican Senate to bounce their president's nominees as "too liberal."

(Hence the sneaky never-come-to-a-vote stuff the Repubs did to Clinton -- they didn't want to come out & admit ideology was a sufficient basis for rejection, either.)

Posted by Anderson | June 5, 2007 3:51 PM

He *is* supportive of homophobia-based descrimination in the law. He does not find that to be unconstitutional.

Legally, it's not at all clear that it is unconstitutional. I'd be very comfortable making the argument that it is unconstitutional (but then, I also think Roe should have been decided on Equal Protection grounds, and that pregnancy should be at least a "suspect" classification for purposes of Equal Protection analysis), but there are plausible arguments either way. I think he is incorrect both legally and morally on this issue, but that's not determinative.

You're substituting a prudential argument for a legal one. Which is fine, but is generally* something we don't want judges doing.

Also, unless the constitutionality of the 'discrimination' was actually at issue in the case, it would have been an abuse of discretion for the appellate panel to rule on that.

* before you come back at me with Brown or Loving or something, there are obviously exceptions...

Posted by Pooh | June 5, 2007 3:55 PM

Yah, FTR, I disagree with the legal bias vs. homosexual parents, and I think that it should be held to violate the U.S. Constitution for the reasons stated by Pooh.

Had the appellant mom posed that issue, the case would not even have gone to the court that Southwick was on -- constitutional issues aren't bounced to the COA in Miss., but are addressed directly by the state supreme court.

The work of a judge, however, is to decide the issue before you with the facts found below and the law at hand. High courts get more room to make up law, but even then it's a rare event.

Posted by Anderson | June 5, 2007 4:06 PM

The same can be said for Texas! This administration has never nominated an African-American for the federal bench! I can name at least 3 top-notched African-American judges who have impeccable resumes & have been loyal to the Republican Party: Supreme Court Justices, Wallace Jefferson & Dale Wainwright, and 1st Court of Appeals Justice, George Hanks, Jr. All of who have been considered for a federal bench seat in the past years & more recently, the 5th Circuit Seat(s)in Texas, but to no avail. Instead, the nomination went to a 40 year old less experienced & less qualified state district court trial judge, Jennifer Walker Elrod. By the way, she just happen to be a member of the Federalist Society. It's shameful & hurtful to the black legal community. We'll see what happens for the Demoss Texas Seat that will be vacant 7/1.

Posted by claudia boudreaux | June 13, 2007 11:19 PM