After six months of steadily approving President Bush’s top-tier judicial nominations, Senators this week may be headed for their first partisan battle over the bench this Congress when the Judiciary Committee votes to install Leslie Southwick to the 5th U.S. Circuit Court of Appeals.
Southwick is highly regarded in GOP circles, but his record on civil and human rights issues has raised concerns recently among some Democrats and left-leaning organizations who view him as too incendiary for a lifetime appellate court spot.
And while that unease may not be enough to sink Southwick’s Senate confirmation entirely, it may be just enough to spark some attention-getting fireworks when the Judiciary panel considers his appointment on Thursday.
“This nomination is a controversial one,” said a senior Democratic Senate aide. “I’m not 100 percent certain he has the votes to make it out of the committee, and if he does go to the floor, this could be the first showdown in 2007 over a controversial Bush nominee.”
“It could be the first judge fight we’ve had in quite a while,” echoed a senior GOP Senate aide.
Southwick, an adjunct professor at the Mississippi College School of Law and longtime state appeals court judge, is the latest of Bush’s circuit court nominees to move through the Senate this Congress. So far, the Senate has approved three of the powerful circuit court justices, including last month’s overwhelming 91-0 vote to put Debra Ann Livingston on the 2nd U.S. Circuit Court.
White House officials have shown no sign of backing off their support of Southwick, whom they view as one of the administration’s more palatable judicial selections. In fact, administration sources said late last week that, mounting criticism aside, they still believe there is enough Democratic support to clear Southwick through the chamber.
“It’s not going to be unanimous vote in committee or on floor, but we are confident we have the votes to get him confirmed,” said one White House official.
Bush’s judicial nominations have been a source of contention in the Senate in recent years, especially during the 109th Congress when Republicans threatened to avert the then-minority’s use of the filibuster if they didn’t allow for up-or-down votes on Bush’s bench selections. Ultimately a deal was struck to allow certain nominations to move forward as long as the filibuster was left intact.
This year, however, the barking has been much quieter and limited primarily to concerns over the pace with which Senators have approved appellate justices. The White House is hoping to advance at least 17 circuit judges over the course of this Congress, the average number approved during the final two years of the past three presidents.
Southwick is Bush’s latest pick for a seat on the 5th Circuit, following some unsuccessful attempts at permanently installing highly controversial selections of Judges Charles Pickering and Michael Wallace. Bush opted against trying to renominate Wallace to the appellate bench earlier this year under the now-Democratic majority.
Given the history, the obstacles now facing Southwick aren’t surprising, and last week several minority rights and liberal judicial groups upped their call for Bush to withdraw his nomination or for the Judiciary Committee to vote against his installment.
Those organizations charged Southwick with a judicial record that favors businesses over workers and one that flies in the face of minority and homosexual rights. More broadly, they also cite concerns over a lack of diversity on the 5th Circuit.
“This is a lifetime nomination, and it could be a lifelong mistake if we allow it to take place,” said Rep. Al Green (D-Texas), a member of the Congressional Black Caucus.
Alliance for Justice President Nan Aron said of the nearly 200 published decisions her organization reviewed, Southwick often voted “in whole or in part in favor of special interests.” Aron called Southwick “the first real controversial nominee to come before the Senate Judiciary Committee.”
“We think Senators have to rise to the occasion,” Aron said in urging opposition to Southwick. “It’s just that important.”
But Southwick supporters say liberal groups simply are looking for a fight, saying that out of nearly 7,000 rulings in Southwick’s career, those opposing forces could find only two objectionable decisions. Criticism over his stewardship of the court is thin, they argue, and based largely on two rulings onto which Southwick signed but did not author, they said.
“At end of the day what we’re looking at is a manufactured controversy,” said a senior GOP Senate aide. “Basically, [Democratic opposition] is a reaction to cries from interest groups.”
Whether the growing criticism will be enough to stall Southwick’s momentum remains uncertain, and so far the only Democratic Senator to publicly oppose his nomination is Sen. Barack Obama (Ill.), a CBC member and presidential hopeful. Southwick’s fate won’t be clear until Thursday’s vote, several Senate Democratic and Republican aides suggested.
“We have a process that involves gathering information through a hearing and questions and answers,” noted a senior Democratic aide to the Judiciary Committee. “This is how our Members approach these decisions. We have this process for a reason, it allows the committee to learn about the nominee and it helps Senators make informed decisions about lifetime appointments. ”
Even so, Republican Senators are bracing for a fight from the left over Southwick. Many GOP Senators even welcome the conflict, believing a protracted contest over judicial nominations is one that could prove politically advantageous for a party that is struggling to regain its footing.
“Do they really want to give us a fight that we do well on or would they rather be talking about Iraq, because the numbers shift dramatically on those debates, and in our favor,” remarked a Republican Senate leadership aide. “It’s an easier debate for Republicans than Iraq or [Attorney General Alberto] Gonzales.”