Who is Leslie Southwick?
On Thursday, the Senate will consider the controversial nomination of Judge Leslie H. Southwick to sit on the United States Court of Appeals for the Fifth Circuit. Should Judge Southwick be confirmed, he would be one of sixteen active judges on that court, twelve of whom were nominated by President Reagan or the two Presidents Bush.
After graduating from the University of Texas law school in 1975 and completing two judicial clerkships, Judge Southwick entered private practice in 1977, where he focused largely on defending oil and gas companies. Judge Southwick served as a Deputy Assistant Attorney General in the DOJ's civil division under President George H.W. Bush, and he served as a judge on the Mississippi Court of Appeals from 1994 until 2006.
As a state court of appeals judge, Southwick often voted in favor of business interests defending themselves against alleged violations of state employment or tort law. According to an Alliance for Justice report, Judge Southwick "has an 89 percent record of voting against workers, consumers and other victims in divided decisions."
Judge Southwick and Access to Justice
In Cannon v. Mid-South X-Ray Co., Judge Southwick joined only one other judge in a dissent which would have barred a victim of chemical exposure in the workplace from seeking redress. In that case, Annie Cannon first experienced symptoms in 1983, but she did not learn that they were work related until a doctor's visit in 1993. While eight judges held that the statute of limitations should begin to run when Cannon learned that her injuries were work related, Judge Southwick wrote that "the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease," regardless of whether they knew or could have known the cause of the injury.
Judge Southwick on Workers' Rights
Dissenting in Dubard v. Biloxi, H.M.A., Judge Southwick expressed his personal belief that employment-at-will, the doctrine which says a worker may be fired at any time for virtually any reason, provides the proper balance of power between employers and employees:
I find that employment at will, for whatever flaws a specific application may cause, is not only the law of Mississippi but it provides the best balance of the competing interests in the normal employment situation. It has often been said about democracy, that it does not provide a perfect system of government, but just a better one than everything else that has ever been suggested. An equivalent view might be seen as the justification for employment at will.
Nevertheless, in Richmond v. Mississippi Dep't of Human Services, Judge Southwick joined a narrow majority opinion holding that a social worker was wrongfully terminated when she was fired for refering to an African-American co-worker by a racially charged term begining with the letter "n."
Judge Southwick on Gay Rights
In S.B. v. L.W., Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents:
I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted.
More on Judge Southwick is available through the Alliance for Justice.
Written By:Sharon On May 8, 2007 2:08 PM Written By:David On June 1, 2007 4:59 AM
Yes, Sharon, the Federalist Society is such a terrible organization!
Imagine believing that the courts exist to apply the laws rather than to make them. Outrageous!
I urge the President to find a better candidate than Leslie Southwick, whose actions have shown him to be unworthy and insensitive. To allow this nomination to be confirmed would condone and legitimize his obvious disregard for issues that confront minority communities. Southwick made a decision in Richmond v. Mississippi Dept. of Human Services to uphold the reinstatement of a worker who referred to a co-worker as a “good-ole nigger” after a hearing officer found that calling the employee “a good ole nigger’ was the equivalent of calling the employee a “teacher’s pet." Southwick also has a proven pattern of approving peremptory challenges that exclude minorities from juries (striking persons from serving on a jury, usually without giving a reason). Those who serve on the bench must not only have a good judicial temperament and be well-versed in the law, they must also have a sound understanding of what constitutes invidious discrimination, as well as what constitutes a hostile work environment.
We have to assume that people may give us only one clue into their inner-most thinking. We cannot avoid the clues given to us by Southwick in his Richmond v. Mississippi Dept. of Human Services ruling and his rulings on race discrimination in jury selection. These rulings are indicative of Southwick’s willingness to condone overt bigotry and engage in covert discrimination. We cannot ignore this evidence before us-- it must be examined before it is too late and a lifetime appointment is made.
Cragg Hines of the Houston Chronicle was absolutely on target when he compared Southwick to Don Imus. Judges have a necessity to be impartial. Southwick and his Imus-like mentality must not be allowed to serve on the bench in the 5th Circuit, the federal circuit with the highest percentage of minorities. Though we may not have evidence on how he would view other minorities, the evidence we do have tells us this is not a person with an adequate understanding of minority issues. It is essential, knowing what we know now, for the President to rethink and withdraw the nomination of Leslie Southwick to the 5th Circuit Court of Appeals-- Southwick is not the only person available. There are other candidates who are capable, competent, and qualified without this Imus-like mentality and they must be considered.
David, You made this statement.
“Imagine believing that the courts exist to apply the laws rather than to make them. Outrageous!”
I am sort of curious about this. While it is true that this is the Federalist Society’s mantra, it is questionable as to whether this is just a political slogan, or a form of philosophy.
For one, courts have always “made” laws, since they usually are in the position of resolving a dispute about what “the law” is. If two sides disagree, a court of competent jurisdiction will resolve this issue.
Secondly, it is generally impossible to set an objective standard as to what the difference between an “application” of the law and a “making” of the law is without resorting to simply taking sides or empty rhetoric.
Third, courts have always articulated what the “common law” is, and the constitution also provides them specifically with the power (and duty) to resolve cases under the constitution. So, while it is cool to tell non-lawyers that a court “made” law, unless you can show that everyone agreed on what the law was beforehand, and deviated from it, it would seem that you are simply siding with the loser of a dispute.
I really dislike the kind of propaganda that says that judges are doing something wrong when they "make" laws. Has anybody on the right (koffMittRomneykoff) ever bothered to read Article 6, section 2 of the Constitution--which all Presidents swear to preserve, protect, and defend? This section contains what has become known as the supremacy clause, the history of which is that courts do indeed have the right to "create" legislation if the legislature will not do so or insists on creating unconstitutional legislation. After all, just because a legislature decides on something doesn't automatically make it constitutional. We can all name examples of the "vox populi" which do more harm to the constitution than good.
Getting back to Judge Southwick, I would suggest that he be denied for one simple phrase: that being gay is a "choice." Knowing the way white Christian Americans slam gays, who would ever "choose" to be gay? The right just doesn't want to have to concede that sexual orientation may be like skin color: beyond one's will to change. This is in contradiction with their religious dogma, and judges like Southwick insist on ruling based on dogma rather than on law.
I fear that Southwick is another one of the mullahs Bush has been steering into the court system to lock an evangelical agenda into place. This trend needs to stop.
Really disappointing comments.
Southwick *applied* controlling Miss. law that the homosexuality of a parent could be *one* factor against a custody award. He was on an intermediate appellate court that had no discretion to ignore the binding precedent of the state supreme court.
As for "choice," the point was about homosexual conduct, not homosexual identity -- and the point was made by the state's second-ever female appellate judge, quite liberal on most issues (but a firm Baptist), in rebuttal of the dissent's argument that individual sexual liberty trumped controlling precedent and the (unfortunately) clear public policy of the state legsislature against homosexuality.
ACS should not embarrass itself by regurgitating propaganda. Let's see some analysis of the actual opinions. Aren't there supposed to be lawyers in the house?
All other objections aside, I think there should be a rule that prohibits anyone who uses the word "impacted" as a verb from serving as a federal judge.
As for "choice," the point was about homosexual conduct, not homosexual identity
I'm disappointed by this comment. Gay parents must remain celibate in order to retain custody of their children?
Is alcoholism a choice?? How about racism? bigotry? religion? divorce? greed? ignorance? Seems these are all things that screw up our children but unless there is a "grave" threat or danger, no judge takes a child away based on these....just a thought
Is alcoholism a choice?? How about racism? bigotry? religion? divorce? greed? ignorance? Seems these are all things that screw up our children but unless there is a "grave" threat or danger, no judge takes a child away based on these....just a thought
Okay, hours ago I posted a comment that dared to include -- gasp -- a link to the actual opinion, so now it's stuck in Comment Limbo.
Nolo, the point about conduct was in the context of the dissent's argument from the right of individual choice, to the non-impact of homosexual conduct on custody decisions. Miss. law binding on Southwick's court said that gay conduct *does* factor negatively -- lousy law, but not anything an intermediate court of appeals can address. So yeah, Miss. law *did* have the perverse result you describe; but not because of Southwick.
Michele: most of those factors do indeed weigh against a divorced parent in a custody battle.
>>>in rebuttal of the dissent's argument that individual sexual liberty trumped controlling precedent and the (unfortunately) clear public policy of the state legsislature against homosexuality.
Judge Southwick's rebuttal was made after the Supreme Court struck down all state laws which made consenual sodomy and homosexuality a crime. Therefore, arguing that Southwick was upholding Mississippi law which criminalized homosexuality and was applicapable to custody cases is moot, since that law had been struck down by the Supreme Court prior to Southwick's rebuttal.
This is just another example of the judicial activism of this administration and it's politicans. I hope he isn't another Federalists Society member. This organization has come close to becoming a cult. It's members, and others who share the same political philosophy, are turning the three branches of government into one ideological extremist cult, with intentions of controlling this and other countries.
The state of law in the country is disgraceful since we've accepted precedent and decency being thrown out the window, only to be replaced with a caste system of centuries gone by.
I am most ashamed of those attorneys in my profession who have condoned, participated and encouraged this assault on, what once was, an institution where the majority of members were striving to make it one of the best systems in the world.