Qualified to Serve

Saturday, August 18, 2007

BEFORE BEING nominated by President Bush to the U.S. Court of Appeals for the 5th Circuit, Leslie H. Southwick served for almost 12 years on the Mississippi Court of Appeals, where he participated in thousands of cases spanning the gamut of civil and criminal law. A panel of the American Bar Association unanimously found Judge Southwick to be "well qualified" for the promotion, its highest ranking. Yet congressional opponents have latched on to two opinions that Mr. Southwick joined, but did not write, to argue that he is unfit for the federal appeals post.

One case involved a child custody dispute in which a lower court awarded custody to the biological father, in part because the biological mother was a self-identified bisexual. The lower court weighed many other factors in making its determination, including income, family stability and time spent with the child, and it found the father better situated to care for her. Judge Southwick was part of the 8-2 majority that left that decision intact after finding that the lower court had not abused its discretion in reaching that conclusion. But he went a step further, joining an unnecessary concurrence that outlined the many laws in Mississippi at the time of this 2001 custody ruling that condemned or penalized homosexual activity.

The second case revolved around a Mississippi state employee who at a workplace meeting described an African American co-worker as "a good ole [expletive]." The employee was terminated for the use of the common racial slur, but she was later reinstated with back pay by a state administrative board. In a 1998 decision, the Mississippi Court of Appeals, with Judge Southwick in the 5-4 majority, concluded that the agency had acted within the law in reinstating the employee with back pay. The Mississippi Supreme Court later sent the case back to a lower court because it concluded that the employee should suffer some consequences for the offensive remark; the court did not object to the reinstatement.

Adding to the discomfort of many civil rights advocates is the fact that President Bush has once again nominated a white man to a court lacking in significant minority representation: Only 1 of 19 sitting judges on the 5th Circuit is African American, even though the three states forming that federal appeals court -- Texas, Louisiana and Mississippi -- have between 30 percent and 40 percent non-white residents, according to the 2000 Census.

For that reason, and because of his relatively pinched approach to judging, Judge Southwick wouldn't have been our first choice for this vacancy. Nor do we like the results in the custody and racial slur cases. But we cannot find fault with Judge Southwick's narrow but ultimately legitimate interpretation of the law in those cases, and we do not find in his record the anti-gay, anti-worker caricature his opponents have drawn. Sen. Dianne Feinstein (Calif.), the lone Democrat on the Senate Judiciary Committee to vote in favor of his confirmation, got it right when she concluded that if senators were to examine Judge Southwick's entire career, including his stint as a judge advocate in Iraq, they would find a "qualified, circumspect person."

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