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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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

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. 

I serially pursued nomination, fell short, dealt with the disappointment, later had hopes revived, and started over.

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.