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The Senate Judiciary Committee put off voting on a contentious nominee to the federal bench for the second time last week, giving liberal interest groups more time to try to convince senators to deep-six the nomination of Leslie Southwick to the Fifth Circuit. Citing insensitivity to civil and gay rights and a pro-business slant, the groups are opposing Southwick, a former Mississippi appellate judge, who is President George W. Bush’s third try at filling the open slot on the U.S. Court of Appeals for the 5th Circuit, which has remained essentially vacant since 2002. His previous two choices — U.S. District Court Judge Charles Pickering Sr. and lawyer Michael Wallace — caused an uproar among civil rights groups leading to a standoff in the Senate before Bush appointed Pickering to a recess appointment in 2004. Wallace withdrew his name from consideration last December. Southwick’s nomination is the first test of how the new Democrat-controlled Congress will approach controversial appointees now that the political parties’ roles have been reversed. At Southwick’s May 10 hearing, Senate Judiciary Chairman Patrick Leahy (D-Vt.) said he wants to avoid “total resistance” to judicial nominations, vowing not to block all Republican nominees. Majority Leader Harry Reid (D-Nev.) has also promised to move judicial nominations at a speedy pace. Leahy and Reid have been pressed on Southwick by the GOP Senate leadership, including Minority Leader Mitch McConnell (K.Y.) and Minority Whip Trent Lott (Miss.) who have been pressuring lawmakers to approve the nominee. How the small-scale confrontation plays out could reveal the extent to which the majority Democrats want to appease their traditional interest group allies at the risk of appearing obstructionist and failing to fill crucial judicial vacancies. Right now, civil rights groups and members of the Congressional Black Caucus have been pushing back against the Republican effort by canvassing the offices of Judiciary Committee members to vocally note their opposition. “I think arguably this is the most controversial seat in the country given the history of nominations since 2001,” says Leslie Proll, director of the NAACP Legal and Defense Fund’s Washington office. “Then you have Southwick’s record, which we certainly believe gives all signs of taking the Fifth Circuit even further to the right.” The 5th Circuit has a 14-5 split in favor of judges appointed by Republicans. At issue are two opinions Southwick joined, but did not write. In one case, Southwick joined a majority opinion that upheld the reinstatement of a white social worker who used a racial epithet to describe a black co-worker. The other case, which has caused opposition from gay rights groups, was when Southwick joined a majority opinion that said a mother’s bisexuality could be a factor in a child custody suit. But GOP loyalists say it’s a lot of smoke with no fire. “I think the Democrats realize the charges against him are pretty shallow,” says Curt Levey, of the conservative Committee for Justice, who is largely staying out of Southwick’s confirmation battle. “At the heart of it is, of course, the desire by some to have an African-American to fill that slot — and believe me, if they could find an ideologically compatible African American, they would love to.” REPEAT PERFORMANCE This isn’t the first time Southwick has been before the Senate Judiciary Committee. Last year, Bush nominated him to a U.S. district court judgeship in Mississippi. The then-GOP-led Judiciary Committee voted Southwick out of committee, but the full Senate did not vote on his nomination. This time around Southwick, who has a long-standing relationship with Mississippi’s senior Republican, Sen. Thad Cochran — he was a volunteer for Cochran’s 1978 senatorial bid — has faced more vocal opposition from civil rights groups. But that hasn’t deterred Lott from taking the lead on arm-twisting allies on the committee like Republican Sen. Jon Kyl (Ariz.) to persuade members to fill the slot, which has been deemed a judicial emergency. “Senator Lott is extremely disappointed by this delay,” says Lott spokesman, Nick Simpson. “We are confident that it will only solidify Judge Southwick’s credentials, his solid recommendations. . . . The fact is that the committee unanimously voted him out, and these are tactics by special interest groups to attack Bush.” Southwick received a “well-qualified” rating from the American Bar Association. Former staffers say Lott took the failures of Pickering and Wallace — both of whom he has long ties to — personally and doesn’t want to let that happen again. But Lott hasn’t been able to count on heavy support from Republican interest groups. Many of the organizations that usually play large roles in judicial nominations haven’t been as active since the Democrats swept into power in November. Committee for Justice’s Levey says Republicans haven’t been pushing harder on the matter because they don’t see enough to derail Southwick. “Our side has not been particularly active partly because it doesn’t seem to be a lot of there, there,” he says. In stark contrast, liberal groups have organized several letter-writing drives and a rally in Texas to gain traction against Southwick, calling out Bush’s failure to appoint African-Americans to the federal judiciary. Last Wednesday, the Congressional Black Caucus and the Black Leadership Forum sent separate letters opposing Southwick’s confirmation, citing civil rights concerns. And groups like the NAACP, the Magnolia Bar Association, a group of black professionals in the Mississippi legal community, and the Human Rights Campaign have blanketed Capitol Hill, meeting with staffers to highlight the two cases that they feel should disqualify Southwick from the federal bench. “It’s not just a horrible decision, but it is the only glimpse we have into his philosophy into employment discrimination cases,” says Proll, of the racial epithet case. Nan Aron of the liberal Alliance for Justice points to other cases that her organization feels show Southwick supportive of business and insurance companies’ interests. “We’re reaching out to a large number of organizations, and already it’s quite apparent that there is significant opposition to Southwick coming from many different quarters,” Aron says. The groups see the committee’s deferral as a positive sign, but say senators are holding their cards tightly. “This week, the tide was starting to turn,” says Allison Herwitt, legislative director of the Human Rights Campaign. “Certainly we would be disappointed if Southwick gets voted out of the committee, and, yes, we would be opposing his vote on the Senate floor.” So far no senator except presidential candidate Sen. Barack Obama (D-Ill.) has weighed in opposing Southwick’s nomination. However, at a Judiciary Committee meeting last week Sen. Arlen Specter (R-Pa.), the ranking member, said he believed Southwick would pass out of the committee and Leahy tipped his hat to Mississippi’s senators, saying he usually deferred to home-state senators of nominees. Should the Judiciary Committee vote Southwick down, it’s likely to be met with a rallying cry of Republicans calling Democrats obstructionists. But, for advocates like Aron, that’s a non-starter: “The fact of the matter is they’ve approved an overwhelming number of Bush’s judicial nominees over these past several years.” Since Bush took office, 276 of his judicial nominees have been confirmed. “This candidate’s record reflects the hostility to so many different constituencies that certainly opposition is warranted in this case,” Aron says.
Anna Palmer can be contacted at [email protected].

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