Feature Story from civilrights.org
Marc H. Morial
October 23, 2007
Marc H. Morial is President and CEO of the National Urban League. His column is published weekly.
Remember Charles Pickering, the 5th Circuit Court of Appeals judge who never won confirmation but still served? After the U.S. Senate twice rejected his nomination, President George W. Bush did an end-run around the chamber and made a recess appointment in early 2004, just a few weeks before Martin Luther King Day. Ironic in light of Pickering's less-than-stellar record on civil rights.
As a federal district court judge, he championed the hate crime case of a man convicted of burning a cross on the lawn of an interracial couple. Pickering even pressured federal prosecutors to drop a charge against the convicted cross-burner. The judge retired near the end of his recess appointment only to be followed by yet another conservative jurist – Mississippi attorney Michael Wallace, who the American Bar Association deemed as unqualified, a determination that doomed his nomination.
Now, in 2007, the ghost of Pickering appears to be haunting the U.S. Senate in the form of Judge Leslie Southwick, a former Mississippi state court judge nominated to take Pickering's place on the New Orleans-based 5th Circuit, one of the most heavily minority circuits in the nation.
Southwick, 57, served as a member of the Mississippi Court of Appeals from 1995 through 2006. During his tenure, he favored the employer over the employee, the corporation over the consumer. However, in a 1998 employment case, Southwick pulled an about-face, siding with a white state employee rightly fired for calling a black colleague a "good ole n***er."
The social worker was reinstated to her job without punishment after the state appellate court ruled that her use of a racial epithet in the workplace "was not motivated out of racial hatred or racial animosity."
Sounds a lot like the excuse radio shock jock Don Imus used last April in defense of the inflammatory racist and sexist remarks he made about the Rutgers University women's basketball squad. I bet Imus wished he worked for the state of Mississippi. He'd still have a job.
In an editorial earlier this year, The New York Times concluded that Southwick "revealed a thorough lack of understanding of the odious impact of such language" in supporting the social worker.
Southwick also joined with a lower court's majority in denying custody to a mother, who had never married the father of her 8-year-old daughter, because she lived with another woman.
The Magnolia Bar Association, a group of black lawyers in Mississippi, has questioned whether Southwick could "properly enforce" the law when "it comes to the rights of those who are unpopular and who are marginalized by the political process."
As The Times suggested earlier this year, a "non-negotiable quality" of judicial nominees should be a commitment to equal justice.
In Southwick's case, that attribute has been thrown out the window just like it was for his predecessors. Again, another conservative jurist is pulled out of what seems to be a bottomless well.
How insensitive, given that the 5th circuit is based in New Orleans, a city still suffering from the effects of Hurricane Katrina and from a lackadaisical federal response to it.
In early August, the Senate Judiciary Committee cast its approval for the Southwick nomination by the slimmest of margins – one vote. It is now headed for the Senate floor, where a vote could be taken as early as this month.
Senators must soundly reject Southwick's nomination to encourage the White House to nominate more mainstream candidates who enjoy support from a broader array of interests than what the president and his cohorts currently consult. When making judicial nominations, the White House should seek the opinions of a wider range of groups – including civil rights organizations. With a broader range of input, the president and his advisers are less likely to put forward potentially divisive candidates, whose nominations end up causing gridlock and creating an air of partisan tension in Congress. And the more contentious the fight over a judicial seat the longer it will go unfilled, which is a great injustice to all.
