Antoine Morris

Judging Likeability

"[Alito] assured me he was not an ideologue. I have increasing reason to believe that is not the case. I have questions about Roberts, too. He assured me he was a nonideologue. So, I am not prepared to say that one can reach a conclusion after this short period, but I am not encouraged by the trend."

Personal assurances, however, should not have been taken at face value. Close scrutiny of Chief Justice Roberts's and Justice Alito's respective records as nominees illustrated their hostility to civil rights, a high level of deference to executive power, and willingness to challenge settled law. Many Democrats wrongly believed that the likeable personalities of each nominee sufficiently warranted their confirmation to a lifetime seat to the country's most powerful court without adequately considering the impact they would have on the law.

In both instances, Senate Democrats, particularly those on the Judiciary Committee, had every Constitutional right to pressure the administration to nominate more moderate judges, but instead abdicated their responsibility to offer "advice and consent" to the president on his nominees. Just because the President nominates someone does not mean that that the nominee is entitled to confirmation. Additionally, Senate Democrats should have been wary of President Bush's judicial nominees since several years prior to the Roberts and Alito nominations, he was pointedly clear about his desire to appoint Justices in the mold of Justices Scalia and Thomas.

Even with their new majority in the Senate, Democrats might just experience buyer’s remorse once again with the recent nomination of Judge Leslie Southwick to the Fifth Circuit Court of Appeals, whose jurisdiction includes Texas, Mississippi and Louisiana. On the Mississippi Court of Appeals for more than a decade, Judge Southwick, has an 89 percent record of voting against workers, consumers and other victims in divided decisions. In an employment case, where a white state employee was fired for calling another co-worker "a good ole n----," he joined a 5-4 majority decision upholding a state agency’s decision to reinstate her. Judge Southwick’s court reasoned that reinstatement was justified in part because the slur "was not motivated out of racial hatred or racial animosity directed toward a particular co-worker or toward blacks in general." In a child custody case that involved a bisexual mother, Southwick joined an unnecessary concurrence condemning homosexuality.

Given Judge Southwick's troubling record, one is at a loss as to why Senator Dianne Feinstein (D-CA) recently decided to support his nomination and vote it out of the Judiciary Committtee. In her speech to the committee, Senator Feinstein cited her pleasant interactions with Southwick and the fact that he did not impress her as racist or homophobic.

I don't believe he's a racist. I don't believe I'm a racist. I believe he made a mistake. Now the question is, 'Does one ever overcome their mistakes?' I believe they do, perhaps some don't. But I believe he is a good person. I believe he is steeped in the law, and he's got 11 years of appellate experience.......I think what sometimes gets lost in our debates about judicial nominees is that they are not just a collection of prior writings or prior judicial opinions. They are, first and foremost, people. And in my conversations with Judge Southwick, I have gotten a sense of what kind of person he is, and the kind of appellate judge that I believe he will be, given that opportunity. Now can I be wrong? Sure, I can be wrong. Have I been wrong before? I don't know. But all I can do is give this my best judgment.

But prior writings and judicial opinions are every indication of what a nominee thinks and shouldn’t be dismissed lightly just because he or she is a “good person.” And on many of the issues that affect ordinary Americans living in Texas, Louisiana, and Mississippi, Southwick's record is less than inspiring.

In her floor speech, Senator Feinstein also said that Southwick was the third nominee the Administration had sent up for the same federal judgeship and that two previous nominees had been rejected. If the Administration sent up three nominees with questionable judicial records, then three nominees should have been rejected. The rejections of nominees such as Judge Terrence Boyle were based on their retrogressive judicial records. The same should have applied to Southwick.

Too bad troubling records weren’t taken into effect when many of Senator Feinstein's colleagues voted for the confirmation of Chief Justice Roberts and Justice Alito to our Supreme Court.

Recent Supreme Court decisions underscore why senators should make a nominee's record the central focus of their vote. Unfortunately, that still isn’t the case as witness Feinstein’s good feeling rationale for voting for Southwick.

If the Democrats want the Administration to stop sending them bad nominees, they’re going to have to grit their teeth and reject them based on their records, not confirm them just because they’re personally “nice” people.

Antoine Morris: Author Bio | Other Posts
Posted at 12:00 PM, Aug 22, 2007 in judges
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