washingtonpost.com
An Unjust Judge

By Nan Aron
Tuesday, August 21, 2007

To understand the furor over President Bush's nomination of Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit, one should start with the Goode family of Mississippi.

A propane heater exploded in their house, killing their granddaughter. The Goodes sued the manufacturer. After the trial, new evidence emerged demonstrating that the company had provided inaccurate information about servicing the heater. Yet, in a dissenting opinion, Southwick argued that the Goodes didn't deserve a new trial.

How about Annie Cannon? It was years before doctors determined that toxic chemicals at work caused her debilitating illnesses. No matter. Echoing the reasoning of the Roberts court's controversial decision that denied Alabama worker Lilly Ledbetter equal pay, Southwick authored a dissent saying that Cannon should be barred by the statute of limitations from bringing suit for her damages.

Southwick supporters are sticking to script when it comes to pushing for his confirmation. George F. Will certainly got his lines right [" Obama Judges a Judge," op-ed, Aug. 12].

But he got the facts all wrong -- especially his ludicrous claim that the only ammunition Southwick's opponents could find were his rulings in two cases. In one, Southwick affirmed the view that referring to an African American co-worker as a "good ole [expletive]" was akin to using the term "teacher's pet." In the other, he went out of his way to express the view that sexual orientation alone was reason enough to deny parents custody of their children. And while these rulings demonstrate the extreme positions he would stake out, that's not all there is.

More disturbing than Will's support for Southwick is the support for the judge coming from those who should know better. The Post unfortunately echoed Will's view that the case against Southwick is based on a few scattered opinions "latched on to" by those who want him turned down [" Qualified to Serve," editorial, Aug. 18].

The Post is wrong. Why are so many unions opposed to Southwick? Because Southwick voted against the interests of injured workers and consumers in divided decisions 89 percent of the time. Why are civil rights groups opposed? Because he also voted overwhelmingly -- 54 of 59 times -- against defendants alleging juror discrimination. That prompted his own colleagues on the Mississippi Court of Appeals to accuse him of "establishing one level of obligation for the State, and a higher one for defendants on an identical issue." Southwick, they charged in a dissent, placed his "stamp of approval on the arbitrary and capricious selection of jurors."

Southwick got achance to explain these decisions. Sen. Richard Durbin asked Southwick whether he could think of one example of an unpopular decision he had made in favor of the powerless, the poor, minorities or the dispossessed. The judge said he could not.

The opposition doesn't stem from anecdote but analysis, analysis that reveals overwhelmingly one-sided patterns. The Post said that opponents of Southwick "haven't made their case." But this argument doesn't reflect the most substantive points that opponents raise.

A nominee's record is the best predictor of what he or she will do on the bench. Southwick's record predicts that those in the 5th Circuit's jurisdiction have much to fear regarding their legal rights and protections. Moreover -- and overlooked by The Post -- the patterns in Southwick's record fit this administration's pattern of behavior. For with the assistance of conservative activists, allies in the Senate and in well-funded interest groups, and the amen chorus of commentators such as Will, George W. Bush has appointed a succession of appellate judges who will serve his administration's ideological agenda long after he has left office.

With the regrettable votes of Sen. Dianne Feinstein and all the Judiciary Committee Republicans, Leslie Southwick's nomination has progressed to consideration by the full Senate. The senators who lamented their inability to block Chief Justice John Roberts and Justice Samuel Alito must take a stand. They're the last line of defense between our third branch of government and the Bush administration's court-packing program. Rather than voting their hopes, as some Democrats have in the past, they must vote according to the facts at hand.

It's rare that I find myself agreeing with Attorney General Alberto Gonzales, but even a stopped clock is right twice a day. In 2006, Gonzales was absolutely right when he said: "Few presidential decisions are more important than lifetime appointments to the federal bench. . . . Indeed, these judicial appointments often represent a president's most enduring legacy."

Federal appeals courts are the final arbiter in shaping much of the law, and it is increasingly clear just how great an impact Bush-appointed judges are having on civil rights and liberties and on worker and consumer protections.

We cannot let this administration pack our courts with judges who share its disrespect for law and lack of compassion for the powerless. These nominees have turned their backs on our most fundamental rights and freedoms. The Senate should turn its collective back on Leslie Southwick and those like him.

The writer is president ofAlliance for Justice, an association of liberal advocacy organizations.

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