Ordeal by Congress
The human cost of advice and consent.
Mar 24, 2014, Vol. 19, No. 27 • By TERRY EASTLAND
Leslie H. Southwick of Jackson, Mississippi, is (or rather, was) “the nominee,” and here provides an account of his quest to become a judge on a particular federal court, the U.S. Court of Appeals for the Fifth Circuit, which sits in New Orleans. President George W. Bush nominated him to that court in January 2007. The Senate approved the nomination 10 months later, but only after Southwick had become one of those “controversial” nominees, as they are whispered about in Washington, barely surviving the confirmation process.
Senators Arlen Specter (Pa.) and Orrin Hatch (Utah) at a press conference in support of Judge Leslie Southwick’s nomination
JONATHAN ERNST / Reuters / Newscom
Southwick doesn’t see his story as an “especially worthy tale.” Other nominees—both those who ultimately gained appointment to the bench and those who did not—have “their own involved stories,” he writes, and each is as “worthy of recounting as mine.”
Southwick is too modest. From the start of his quest, he took notes of pertinent meetings and events and phone calls. Together with relevant documents and letters he saved, those notes—in effect, a diary—have enabled him to thicken and authenticate his story, making it all the more compelling.
Southwick frames his story in terms of the steps that must be taken to become a federal judge. Thus, a person is recommended for the president’s consideration; selected as the presumptive nominee by the president or his aides; investigated by the FBI and, perhaps, the American Bar Association; nominated by the president, a formal act; interrogated by the Senate Judiciary Committee; reported out of committee to the floor of the Senate; confirmed by the Senate, also a formal act and by which it provides its “advice and consent” to a nomination; appointed—another formal act—by the president, who signs the new judge’s commission of office; and the easy last step, sworn in.
As Southwick makes plain, there are several points at which a nomination can fail—as when it is simply ignored by the Senate, not reported out of the Judiciary Committee, filibustered, or not confirmed if a vote is taken.
Of course, not everyone, even among those with the requisite lawyerly credentials, wants to become an appellate judge, even one on the Fifth Circuit. But Southwick’s ambition is understandable. He was born and reared in Texas, one of the three states that make up the Fifth Circuit (the other two being Louisiana and Mississippi). Interested in politics from his youth, and an active Republican as a student at Rice, he graduated from the University of Texas law school in 1975, after which he clerked for a Mississippi judge on the Fifth Circuit, Charles Clark, a Nixon appointee. Southwick admired Clark and credits him with planting, during his clerkship, a “seed of being a [Fifth Circuit] judge.”
That seed germinated in 1991, when Clark retired and Southwick pursued his seat. But he failed in that effort, as he did in pursuing later vacancies.
Indeed, the reader is struck by the time—parts of 16 years—and effort that Southwick spent in that serial, intraparty pursuit. Southwick worked the state’s two Republican senators, Trent Lott and Thad Cochran, and their staffs, in addition to numerous Mississippi lawyers and politicians—anyone, indeed, who he thought might help him, including pertinent aides of George H. W. Bush and, later, of the second. Southwick had some excellent jobs in those 16 years—as a lawyer in the Civil Division of the first Bush Justice Department, and then as a judge on the Mississippi Court of Appeals. But becoming “the nominee” proved a demanding second job, one requiring intense determination that was finally rewarded when George W. Bush nominated him.
As the nominee, Southwick faced a confirmation process much different from the one experienced by his mentor Judge Clark, who was nominated on October 7, 1969, and confirmed by unanimous consent a mere eight days later. That was a time when control of the circuit courts had yet to become a strategic goal for the two parties, with very few nominations denied. In the case of the Fifth Circuit, which was created in 1869, only five nominees failed to win Senate approval prior to 1992—a span of some 125 years; during the next 15 years, five more nominees met that same fate. Three were Clinton nominees and two were George W. Bush nominees. And two other Bush nominees (Southwick and Priscilla Owen) had to overcome filibusters.
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.
As the subtitle indicates, The Nominee is the story of “a political and spiritual journey,” which means that it is the story of a political journey that is simultaneously a spiritual journey, with “spiritual” understood by the Roman Catholic Southwick (who was raised Methodist) in broadly Christian terms. Major themes here are providence and forgiveness. Providence, because after constantly wondering how his journey will wind up, Southwick finally reaches the point where he is as accepting of one outcome (a successful nomination) as he is of the other (a failed one). Forgiveness, because Southwick is dismayed by his critics but comes to forgive them even as he accepts how it was that they could have opposed him.
Southwick writes that his book is “at its most basic level a plea for reconciliation among those who battle in judicial wars.” Those wars, however, are unlikely to abate so long as the two parties disagree, as they so sharply do, over the role of the courts and how judges should interpret and apply the law. This well-written and engaging tale of a nomination almost undone thus promises to have an ongoing audience, perhaps including someone as eager as the author once was to become a judicial nominee.
Terry Eastland is an executive editor at The Weekly Standard.