The Magazine

Ordeal by Congress

The human cost of advice and consent.

Mar 24, 2014, Vol. 19, No. 27 • By TERRY EASTLAND
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 Southwick cites some interesting numbers from the last three presidencies showing that the worst time to be a circuit court nominee is when the president is in the last two years of his tenure and the Senate is controlled by the party opposite the president’s. Thus, in 1991-92, the last two years of the first Bush presidency, a Democratic Senate confirmed 20 of 31 circuit court nominations, or 65 percent. In 1999-2000, President Clinton’s final two years in office, Republicans confirmed only 15 of 34 such nominations, or 44 percent. And then, in 2007-08, the second Bush’s last two years as president, Democrats confirmed 10 of 23 circuit nominations, or 43 percent. In those circumstances, writes Southwick, the Senate majority (Democratic or Republican) gets the “slows,” thus hoping to maintain vacancies that a new president, one of its party, will fill. 

 

Southwick was one of those 23 circuit court nominees chosen by George W. Bush in his final two years. His nomination seemed to be going smoothly enough until May 1, 2007, two days before his confirmation hearing, when liberal advocacy groups began their assault, prefiguring the opposition of Senate Democrats in the days ahead. 

The groups cited two majority opinions that Southwick had joined while sitting on the Mississippi state appeals court—opinions that, they insisted, disqualified him from the federal bench. In one case, the majority held that the state Employee Appeals Board acted within its discretion in finding that a white employee who had described a coworker as a “good old n—” to fellow workers did not need to be terminated. In the other case, the majority upheld a child-custody decision by a state court judge that had taken into account whether a parent was gay or lesbian, and it used the phrase “homosexual lifestyle” in describing this factor, one of a dozen required by law in making such decisions.

For the liberal groups, that Southwick had joined these two majorities revealed a nominee retrograde on matters of race and sexual orientation. In fact, as Southwick shows, the opinions were reasonable decisions based on the role of an appellate judge. At the time, though, they “became my twin burdens .  .  . used to crush me in the months ahead.” Not incidentally, the first Democratic senator to oppose Southwick publicly was the soon-to-be presidential candidate, Barack Obama of Illinois.

With Democrats controlling the Judiciary Committee by a single vote, 10-9, Southwick, who had received the highest possible rating from the American Bar Association, found himself needing the vote of a single committee Democrat for his nomination to be reported to the Senate floor. Otherwise, his nomination would be stuck in committee. Dianne Feinstein of California seemed open to his nomination, but would support it only if Southwick wrote a clarifying letter regarding the racial slur used by the employee in the Employee Appeals Board case. Southwick obliged, with one (included in The Nominee) in which he stated his abhorrence of the slur. Feinstein was satisfied—and other committee Democrats were surprised when she cast the vote that sent his nomination to the floor. Clearly, they had expected his nomination would be doomed in committee. 

Still, the Democrats had another shot at blocking the nomination. Under Senate rules at the time, a three-fifths supermajority of 60 senators was needed to end a filibuster and set up a confirmation vote. Continuing to lobby Democrats, Southwick managed to pick up the votes needed, overcoming the filibuster 62-35. The Senate then confirmed his nomination by a vote of 59 to 38. 

Today, thanks to the new voting requirement adopted by the Senate three months ago, only a simple majority of members present and voting are needed to defeat a filibuster. The simple-majority threshold will weaken, though not invariably so, the Senate minority in situations in which the party of the president making a nomination and the Senate majority reviewing it are the same. And when the president is from the opposite political party, the Senate majority may wind up blocking more nominations earlier in the process—in committee, where a more disciplined Democratic Senate could have blocked Southwick’s nomination.