The Nominee

The Nominee: A Political and Spiritual Journey

LESLIE H. SOUTHWICK
Copyright Date: 2014
Pages: 336
https://www.jstor.org/stable/j.ctt2tvn50
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    The Nominee
    Book Description:

    President George W. Bush nominated Leslie H. Southwick in 2007 to the federal appeals court, Fifth Circuit, based in New Orleans. Initially, Southwick seemed a consensus nominee. Just days before his hearing, though, a progressive advocacy group distributed the results of research it had conducted on opinions of the state court on which he had served for twelve years. Two opinions Southwick had signed off on but not written became the center of the debate over the next five months. One dealt with a racial slur by a state worker, the other with a child custody battle between a father and a bisexual mother. Apparent bipartisan agreement for a quick confirmation turned into a long set of battles in the Judiciary Committee, on the floor of the Senate, and in the media.

    In early August, Senator Dianne Feinstein completely surprised her committee colleagues by supporting Southwick. Hers was the one Democratic vote needed to move the nomination to the full Senate. Then in late October, by a two-vote margin, he received the votes needed to end a filibuster. Confirmation followed.

    Southwick recounts the four years he spent at the Department of Justice, the twelve years on a state court, and his military service in Iraq while deployed with a Mississippi National Guard Brigade. During the nomination inferno Southwick maintained a diary of the many events, the conversations and emails, the joys and despairs, and quite often, the prayers and sense of peace his faith gave him--his memoir bears significant spiritual content. Throughout the struggle, Southwick learned that perspective and growth are important to all of us when making decisions, and he grew to accept his critics, regardless of outcome. In The Nominee there is no rancor, and instead the book expresses the understanding that the difficult road to success was the most helpful one for him, both as a man and as a judge.

    eISBN: 978-1-62103-994-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-8)

    In January 2007, I was nominated by President George W. Bush to a seat on the United States Court of Appeals for the Fifth Circuit from Mississippi. In early May, and continuing for almost six months, I became in news reports and opposing senators’ speeches and too many other places “the controversial judicial nominee.” That phrase represented the essence of who I was to people newly aware of me, in the way that others who for a brief time appear repeatedly in the news are given memorable short descriptions preceding their names as a reminder to the reader, such as...

  5. 1 The Final Day
    (pp. 9-17)

    It was 4:30 a.m. on Wednesday, October 24, 2007. No need to keep looking at the clock. I had not slept much and definitely would not start now. I had spent the night at the Andrews Air Force Base visiting officer quarters in suburban Washington. Even a Mississippi National Guardsman like myself could get a room when vacancies were available. I arrived on Monday. It was my sixth time staying at Andrews since President George W. Bush had nominated me in January to be a judge on the United States Court of Appeals for the Fifth Circuit. The trips were...

  6. 2 Beginnings
    (pp. 18-35)

    The voyage that was arriving at its destination on that October day was the result of people and events that influenced my life long before President Bush nominated me. Some provided opportunities that set my course or gave me obstacles that redirected me. Others shaped my interests. There were companions who traveled with me. A few parts of my background made the voyage difficult. I cannot identify all the influences, but I can try to give some understanding of what led me that October morning to be in a room off the Senate floor.

    My hometown is Edinburg, Texas, which...

  7. 3 The Bush Administration
    (pp. 36-49)

    I was tempted but undecided about whether to try to follow Bush to Washington. It was a difficult decision to leave private law practice for the uncertainties of a political position in Washington. Sharon was unenthusiastic. She did not want to move, to sell or rent the home we had built just four years earlier, to find schools for Philip and Cathy, and otherwise to have an upheaval for what I assured her was only temporary duty. We discussed the possibility several times.

    As I struggled with whether I should pursue the opportunities that would likely be there, I found...

  8. 4 The Mississippi Court of Appeals
    (pp. 50-66)

    On Inauguration Day 1993, as Bill Clinton stood on a platform at the Capitol to be sworn in, I was packing a U-Haul trailer to return to Jackson. A moving van had already taken almost everything back to Mississippi when Sharon, Philip, and Cathy went home the previous June.

    My final few years at the Brunini firm had not been successes in billable hours. Instead of cultivating and acquiring clients, I had focused on politics and, for much of 1986, a gubernatorially appointed commission to prepare a new state constitution. Clearly I was no profit center. At some stage before...

  9. 5 Clinton’s Fifth Circuit Choices
    (pp. 67-74)

    Controversies about circuit judge nominations used to be extremely rare if not quite nonexistent. The first circuit court judge positions were created in 1869. The first nomination to the Fifth Circuit not to be approved was made in 1881, the second in 1943, and the third in 1979. Then, what had been gaps of multiple decades between defeats became much shorter. A Reagan nominee failed in 1987, then a Bush nominee never got a vote in 1992. After the failure of only five nominees in the first 125 years of the Fifth Circuit, five more would be blocked in the...

  10. 6 A Hesitant Application
    (pp. 75-81)

    Several judicial nominees of the next president, George W. Bush, encountered more than the usual resistance. To designate one of them as having the most contentious struggle would be too bold. It is safe, though, to identify Charles Pickering’s nomination to the Fifth Circuit as a clear finalist for that designation. Pickering was nominated for the Henry Politz seat, the one for which Bob Galloway had been considered, the one to which I would be nominated in 2007.

    At the beginning of the four-year Pickering battle, I was on the outside, trying to break into the discussion. I did not...

  11. 7 Becoming a Soldier
    (pp. 82-87)

    As I worried and then despaired about my personal ambitions, others were making plans for war. The attacks of September 11, 2001, created a new perspective. This tragedy in so many lives made my pursuit of judicial office seem frivolous and selfish.

    This was one of those rare events in which adults at the time can easily remember where we were when we learned. I was walking down the fire escape of the Court of Appeals Building, taking the shortest route to the street so that I could walk to the class I was teaching at Mississippi College Law School...

  12. 8 Mixed Judicial and Military Pursuits
    (pp. 88-101)

    Judge Pickering’s initial hearing in the Judiciary Committee was on October 18, 2001.¹ It was immediately clear he would have to return. Senator Ted Kennedy said he was not trying to block the nomination, but he wanted to see many more of the judge’s opinions from his eleven years on the district court. So did fellow Democrats Pat Leahy and Chuck Schumer. District judges do not write numerous and lengthy opinions that are then published.

    A news article said that even though Pickering had been expected to “win easy approval,” particularly since he had been confirmed eleven years earlier for...

  13. 9 Training and Pursuing
    (pp. 102-115)

    A week after Leslie King’s selection, I learned of another reason I just would not do as chief judge. It was a long-awaited, desired, but still-feared telephone call.

    “Saturday, May 8, 2004. Lieutenant Colonel Roy Carpenter called at the house at about 3:15. Sharon answered. She did not know who it was and handed the phone to me with a look of concern. Roy was calling all the JAGs to let us know we were now on alert for imminent military duty. He had no other details. I told Sharon. She said that she wished I had gotten out a...

  14. 10 A Year in Iraq
    (pp. 116-129)

    The events of 2005 involved far more important matters than my frustrated ambition. I had a chance to fulfill my dream of serving in the military, as so many other Americans had before me.

    On January 15, I sent my last letters to Philip and Cathy before leaving Camp Shelby. “I am definitely ready for the deployment to Iraq to be under way. There is important work to be done; it should be quite interesting, and I expect looking back on the experience I will always be glad that the opportunity was available. However, it also is the kind of...

  15. 11 Back Home and Breaking Through
    (pp. 130-141)

    After taking most of January off, I finally went back to the court. This was my reelection year. Deciding whether to run again would be affected by the decision on the federal judicial appointment. There still was no word from the White House.

    On January 23, 2006, I e-mailed Senator Cochran’s chief of staff, Mark Keenum. I wanted to be sure the senator knew I was back. Mark replied: “I hope you are still interested in serving as a federal judge. I just talked to one of my White House contacts and he confided to me that you were still...

  16. 12 The Fifth Circuit Shift
    (pp. 142-151)

    By the time this very long journey ended, I had kept three separate word processing documents that made up my diary. The first started with the gleam in my eye in 1991 and was kept haphazardly until after the 2000 election. The second document was dedicated to what happened in 2006 about the district court, which could be described as either a lot or almost nothing. The final document covered all of 2007. It was the longest, as an eventful year was ahead.

    The first entry was an e-mail I sent to Thad’s counsel Brad Davis four days after Congress...

  17. 13 The Hearing
    (pp. 152-165)

    Trent Lott was a senator who made things happen, who enjoyed the battle and loved to win. Commentators would remark about how his hair was perfectly combed and unmoving. To me, his appearance symbolized how well organized he was in all ways. Once committed to a goal, he was indefatigable. I heard him in action once in his office, speaking on the phone, cajoling and praising a Republican colleague, given sound political advice, all while trying to get the caller’s vote on something. I, fortunately, became one of his final Senate projects.

    Late in the afternoon of May 3, I...

  18. 14 The Sorting Out
    (pp. 166-178)

    I was discouraged. I had hoped that what in my view were simplistic and political criticisms that did not take account of the limited role of an appellate judge would not have any effect on the senators. Could the Democratic senators really believe the harsh things they were saying?

    The Senate had a narrow Democratic majority, and thus so did each committee. The Judiciary Committee membership was ten Democrats and nine Republicans. As the controversy about me became more serious, I worried that even some Republicans might not support me. That did not occur. But I would need at least...

  19. 15 A Pause, and a New Approach
    (pp. 179-191)

    Among those following my lack of progress were my former secretary at the state court and three prospective law clerks, all of whom by late May had an offer to join me at the Fifth Circuit, contingent on my getting there myself. One of my occasional status reports was sent at this time.

    I am writing you collectively, as each of you has been offered a position for working with me should I become a Fifth Circuit judge. The odds of success look rather long, but there are reasons not to give up hope.

    Sen. Specter has tried to arrange...

  20. 16 Desperation, and Witches and Martyrs
    (pp. 192-206)

    The nature of my problem with Senator Leahy became public on July 19. He released a statement, posted on the committee’s Web site.¹

    I have urged the White House to work with Senators of both parties and to fill the 5th Circuit vacancy from Mississippi with the nomination of the Honorable Henry Wingate. Judge Wingate would be the first African American from Mississippi to serve on the 5th Circuit. He was appointed to the federal bench in Mississippi by President Ronald Reagan. He has served with honor and distinction for more than 20 years, since we helped confirm him in...

  21. 17 The Committee Speaks
    (pp. 207-212)

    Because I was in Washington, I did not see the morning Jackson newspaper. That was for the best. A front-page story was subtitled “Southwick Nomination Not Expected to Pass Committee Muster Today.”¹ The article said that no Democrat was expected to vote for me. Photos of Henry Wingate and of me were atop the article. The reporter said Senator Leahy had suggested Wingate take my place as the Fifth Circuit nominee. The tone of the article was that I would be stopped, and Judge Wingate was next.

    “Thursday, August 2. I was worried, even discouraged, that the letter would not...

  22. 18 A Lull: Would There Be a Storm?
    (pp. 213-223)

    An encouraging news story appeared in Roll Call on August 6. It had a terrific title, “Gang May Reunite for Deal on Southwick.”¹ It started with this line: “As Republican Senators prepare for a possible September standoff with Democrats over their choice for the 5th U.S. Circuit Court of Appeals, the remaining members of the bipartisan ‘Gang of 14’ say they may have to come together to help referee the fight.” Senator Ben Nelson was identified as a key Democrat wanting to avoid a return to the dark days of filibusters of judicial nominees. Senator Cochran, trying to belittle the...

  23. 19 The Final Two Trips
    (pp. 224-234)

    The Senate was in recess for a week. On Sunday, October 7, the Jackson newspaper quoted Thad as saying that senator Harry Reid, who as majority leader had the authority to schedule votes, had agreed to delay my vote, saying, “I’ll call him up when you want me to call him up.” That concession was hugely important and controversial. Months later, I read a newspaper article that said that “liberal Democrats have felt they were rolled before by Reid, who publicly opposed the nominations of both conservative Judge Leslie Southwick and Attorney General Michael Mukasey while working behind the scenes...

  24. 20 The Beginning of the Last Day
    (pp. 235-240)

    The next morning, back I went to Capitol Hill. For better or worse, the end was near.

    At the beginning of the book, I described the morning up until the time the vote began. There had been two early morning meetings, the first with Colorado senator Ken Salazar at 7:30, the other with senator Tom Carper of Delaware at 9:30. Then I went to a secretarial area for the vice president in the Capitol, adjacent to a large ceremonial waiting room just off the Senate floor.

    What I did not earlier describe were some events I learned about later. The...

  25. 21 The Vote
    (pp. 241-246)

    The end of a sixteen-year journey was near. The destination was thirty minutes away, but looking toward it revealed nothing. Looking back, though, I could see so many things:

    A decade and a half of hopes and disappointments, then a call from my dear friend Thad Cochran saying I would be nominated that day.

    Being called by Senator Lott in late April to be told that I was the next nominee who would be given a hearing and would be confirmed by Memorial Day.

    A campaign against me beginning on the eve of my hearing.

    Expecting, then week after week...

  26. 22 A Victory Lap
    (pp. 247-253)

    Senator Specter and his staff organized a reception for me in the Senate Judiciary Committee hearing room at 5:00 that afternoon. Republican senators Kyl, Hatch, and Cornyn were there. So was Senator Feinstein. It was a soft-drink reception until Senator Feinstein had California wine brought over from her office. There were perhaps forty people, including representatives from some of the outside groups that had been so helpful. I finally got to meet Ed Whelan, Curt Levey, David Keene, Wendy Long, and others. Senate staff were there, dear people, who had been allies and now were friends. And so was Harold,...

  27. 23 Reflections
    (pp. 254-260)

    Less than a week after my vote, the Boston Globe columnist Peter Canellos wrote that many opponents had been infuriated at my victory. He then wrote sensitively about the perspective of nominees who go through such experiences. He discussed the personal cost to the nominee, a point he quoted Senator Feinstein as having made in one of her speeches about me. He closed his column with the opinion that the savaging of nominees “has made them very bitter.”¹

    Thankfully, I was able to avoid bitterness. I prevailed, which surely helped. I hope it would have been possible to avoid resentments...

  28. Epilogue
    (pp. 261-262)

    The political turmoil that greeted each white male nominee to a federal court in Mississippi since the late 1980s arose from the insistence that more black judges had to be named. With Barack Obama’s election in 2008, the demand would be answered.

    The U.S. District Court vacancy for which I had been selected in 2006, then to which Meridian lawyer Rick Barry was nominated in 2008, was still unfilled when President Bush left office. It took more than another year, but Carlton Reeves, a Jackson lawyer, black male, and former first assistant U.S. attorney under President Clinton, was nominated in...

  29. Appendix: Selection of Fifth Circuit Judges, 1869–2012
    (pp. 263-276)
  30. Notes
    (pp. 277-301)
  31. Index
    (pp. 302-316)
  32. [Illustrations]
    (pp. None)