The Leadership Conference on Civil and Human Rights

Civil Rights Monitor
Winter 2007

• Introduction

On the Hill

• The Year in Judicial and Executive Nominations
• D.C. Voting Rights: Closer than Ever
• Hate Crimes Bill Moves through Congress
• Fighting to Preserve and Restore Workers' Rights
• The Immigration Reform Debate Continues
• Congress Begins Addressing Subprime Mortgage Fallout
• Successes and Setbacks on ENDA
• Backlash against the REAL ID Act Grows

Executive Branch

• Deja Vu at the FCC?

In the Courts

• Supreme Court Hands Down Major Decision on School Integration

In the States

• New Threats to Affirmative Action

LCCREF Activities

• Civil Rights Enforcement Takes Center Stage
• Leadership Conference Steps Up Anti-Poverty Efforts
• New Civil Rights Partnership Calls Attention to Nation's High School Crisis
• Why Americans Should Care about the Great Switch to DTV
• President Clinton, John Hope Franklin, and Tammy Duckworth Are 2007 Hubert H. Humphrey Honorees

The Year in Judicial and Executive Nominations

The change in control of the Senate in the 2006 elections prompted the withdrawal of the president's most controversial judicial nominees in December of that year, including the nominations of Terrence Boyle to the Fourth Circuit, William Myers to the Ninth Circuit, William Haynes to the Fourth Circuit, and Michael Wallace to the Fifth Circuit.

These nominees had galvanized opposition from the civil and human rights communities, as well as environmentalists and other groups that work together to promote fairness in the nation's courts. They had already languished for months in a Republican Senate, and it became clear that the chances of confirmation for nominees with such extreme views would diminish further in the new Congress.

However, the administration resumed its efforts to appoint conservative ideologues to the federal bench. 

One of the most significant battles began shaping up in January. Judge Leslie Southwick, a Mississippi state court judge, was nominated to a vacant Mississippi seat on the U.S. Court of Appeals for the Fifth Circuit. This was the same seat sought by Charles Pickering and Michael Wallace, whose nominations failed.

The anti-civil rights records of Pickering and Wallace led to their rejection. It was noted by many senators that the Fifth Circuit, consisting of Texas, Mississippi, and Louisiana, served an area with the largest proportion of African Americans of all the circuits.

On inspection of his record, Judge Southwick seemed cut from the same cloth. Most notably, Judge Southwick had issued decisions in cases involving the rights of minorities, gays and lesbians, and workers and consumers, which raised profound doubt about his commitment to equal justice.

"Just like Pickering and Wallace before him, Southwick appears ready and willing to turn back the clock on fifty years of social justice progress in our nation," said People For the American Way President Ralph Neas.

Several aspects of his state court record tended to support this conclusion. In 1998, Southwick joined a ruling in an employment case that upheld a state employee appeals board's reinstatement, without any punishment of a white state employee who was fired for calling an African American co-worker a "good ole nigger." The lower court's decision upheld a hearing officer's order that compared the racial slur to the term "teacher's pet." The Mississippi Supreme Court unanimously reversed the decision.

In 2001, Judge Southwick joined a ruling that upheld a lower court decision to take an eight-year-old girl away from her mother and award custody to the father, who was not married to the mother, largely because the mother was living with another woman in a "lesbian home." Southwick joined a concurrence that suggested that sexual orientation is a choice and stated that an adult is not "relieved of the consequences of his or her choice" -- e.g., losing custody of one's child.

Judge Southwick also possessed a striking record of voting against injured workers and consumers in cases pitting their interests against those of business and insurance interests. In nearly 90 percent of split decisions in consumer and workers' rights cases, typically involving torts and workers' compensation, he voted against the injured party.

In spite of this record, senators -- looking to Judge Southwick's personal qualities and placing hope in his assurances that he would be sensitive to racial injustice -- voted to confirm him and he was ultimately confirmed, after a filibuster effort narrowly failed, by a vote of 59-38.

In response to the vote, Leadership Conference on Civil Rights (LCCR) President and CEO Wade Henderson stated, "Judge Leslie Southwick's confirmation is a slap in the face to African Americans and people of good will."

On other courts of appeal nominations, President Bush refused to honor the longstanding practice of consulting with home state senators, even though Senate Judiciary Committee Chairman Patrick Leahy, D. Vt., had reinstituted the blue slip practice (rescinded by Republicans when they controlled the Senate as a means to facilitate President Bush's divisive nominees), which required that both home state senators consent to a nomination before it could move forward. Spurning moderation and efforts to find middle ground, the Bush administration proceeded unilaterally, in some cases without even giving the home state senators any advance notice of who the nominee would be.

An egregious case of the administration's thumbing its nose at the Senate was the nomination of Robert Getchell to the Fourth Circuit. Virginia Senators Jim Webb and John Warner, a Democrat and Republican respectively, had submitted a list of five recommended nominees for two Virginia Fourth Circuit seats. These included respected mainstream conservatives. These recommendations were ignored.

Executive Nominations

Attorney General Alberto Gonzales announced his resignation in late August 2007, and in September, President Bush nominated a federal judge, Michael Mukasey, to replace him. During Gonzales' tenure, Department of Justice priorities mandated by law and commanding broad public support, particularly civil rights enforcement, were neglected and subordinated to an agenda driven by political considerations. Meanwhile administration decisions that should have been made with the advice of an independent Attorney General, including decisions about the treatment of detainees, were instead ratified by political loyalists in the Department. Against this backdrop, the civil and human rights communities, while hopeful that Judge Mukasey would restore integrity to the Department, nonetheless urged careful scrutiny of the nomination.

In his hearing, Judge Mukasey refused to define waterboarding as unlawful even though it was widely condemned as torture by military and human rights experts. He advocated an expansive view of executive power, and suggested that the president could overrule the other branches of government. A coalition of civil and human rights groups led by LCCR opposed his nomination. Many senators rallied in opposition, and he was confirmed by a narrow vote of 53-40 -- in spite of initial Senate enthusiasm for his candidacy.