Senate Confirms
Southwick to Federal Bench

The Senate on Wednesday confirmed former Mississippi appellate court judge Leslie Southwick to the U.S. court of appeals in New Orleans, despite raging objections to his record on gay and African-American civil rights.

Lawmakers first voted 62-35 to end debate on Southwick's nomination. They subsequently voted 59-38 to seat the 57-year-old native Texan to the fifth circuit, one of 12 federal appellate courts one rung down from the U.S. Supreme Court.

The vote, a rare Republican victory in a Democratic-led Senate, was sealed after the nomination survived its main obstacle, a test tally moments earlier in which a dozen Democrats sided with Republicans to thwart a filibuster. That left Democrats without the power to block Southwick's confirmation, even after a heated debate that raised the pain of civil rights struggles in the fifth circuit, which serves Mississippi, Louisiana, and Texas.

Citing a disturbing antigay custody opinion from 2001, the Human Rights Campaign called the Senate's performance "a vote against the dignity and safety of our families and an insult to the millions of dedicated GLBT parents raising happy and healthy children across this country."

The far-right Focus on the Family, in turn, called the green light long overdue.

"Judge Southwick's confirmation is a tribute to his unequaled reputation as a fair jurist," said Focus judicial analyst Brice Hausknecht. "The country benefits from another jurist who will interpret the law rather than create it from the bench."

In August, after Southwick's nomination appeared to be stalled in the Senate Judiciary Committee, Sen. Dianne Feinstein of California cast a tie-breaking vote to send Southwick to the full Senate by a 10-9 margin. The senator from San Francisco was roundly criticized by progressive groups, including gay activists.

Southwick now joins three other conservatives nominated by President Bush for the fifth circuit. He is the first, however, to be confirmed by a Democrat-controlled Senate.

Although Bill Clinton named two judges to the fifth circuit in the 1990s, those nominees were successfully blocked by then-Senate majority leader Trent Lott through the end of the Clinton presidency, leaving Bush with a raft of vacancies and a friendly Senate.

Under these circumstances, Southwick's journey through the confirmation process was thus another disappointment from the new leaders of Congress, who in theory had the power to prevent his confirmation. The 17-member court now includes 11 Republicans and four Democrats, while two seats remain empty.

Southwick sat for more than a decade on the Mississippi court of appeals, where, according to the left-wing Alliance for Justice, he compiled the highest pro-business rating of any judge on the court, voting in favor of corporations and institutions in 160 of 180 employment and business tort cases.

Notably, one of the rare employees to win Southwick's judicial vote in a wrongful-termination case was a social worker who called a black colleague a "good ol' n-----" in an executive meeting. Southwick joined the 5-4 majority that reinstated the woman with back pay, ruling that her comment "was not motivated out of racial hatred or racial animosity directed toward a particular coworker or toward blacks in general."

The gay community focused on the case of a bisexual mother, who had raised her 8-year-old daughter with help from the child's father under a voluntary arrangement. The father, with a family of his own, contributed financially and saw the girl on a regular basis. When the mother decided to move to another town and start a business with her female partner, the father sued for custody and won.

The lower court's decision was upheld by the Mississippi court of appeals with all 10 members sitting. Eight judges, including Southwick, joined the majority opinion. At issue was not simply the mother's relationship, but the relative financial resources of both parents, the step siblings, the school district, the environment, and the best interests of the child.

The majority stated that they took the mother's sexual orientation into account, but added that this factor alone could not and should not determine the outcome.

But one member of the eight-judge majority, Judge Mary Libby Payne, drafted her own concurring opinion, a three-page diatribe against homosexual parents, articulating the state's public policy and concluding that sexual orientation alone was perhaps grounds for losing custody. Southwick was the only judge to join Payne's concurrence, distinguishing himself from his colleagues in embracing the most extreme interpretation of the law.

For LGBT advocates, the implications were inescapable. Although Southwick did not write the three-page analysis, his agreement was a deliberate act and reflected a harsh antigay mind-set that did not bode well for future gay litigants in the fifth circuit.

Despite intense opposition from gay and other civil rights groups, Senate majority leader Harry Reid did not aggressively lobby his party in opposition to Southwick and may have traded a Southwick vote for GOP help in negotiating with the White House over future Democratic bills, according to The New York Times, citing Roll Call. (Ann Rostow, Gay.com)