Leslie H. Southwick

Leslie H. Southwick (born February 10, 1950) is a federal judge on the United States Court of Appeals for the Fifth Circuit and a former judge of the Mississippi Court of Appeals.

Background

Born in Edinburg, Texas, Southwick graduated cum laude from Rice University in 1972 and received his juris doctor from The University of Texas School of Law in 1975. Following law school, Southwick clerked for the Presiding Judge, John F. Onion, Jr., of the Texas Court of Criminal Appeals from 1975–1976, and then, in Mississippi, for Judge Charles Clark on the United States Fifth Circuit Court of Appeals from 1976-1977.^[1]

Southwick was in private practice as an attorney in Jackson, Mississippi with the firm Brunini, Grantham, Grower & Hewes from 1977–1989, serving as a partner from 1983-1989. In 1989, Southwick entered government service as a Deputy Assistant Attorney General for the United States Department of Justice Civil Division. There he supervised the one hundred and twenty-five lawyers of the Federal Programs Branch, which defends suits brought against the United States. He also supervised the Office of Consumer Litigation, a twenty-five lawyer division charged with civil and criminal enforcement of federal consumer laws.

Southwick was elected one of the first ten judges of the Mississippi Court of Appeals in 1994. He remained on the court until the end of 2006 when, with a nomination to a lifetime position in the federal judiciary pending, he did not run for re-election. Southwick was on a leave of absence from the court from August 2004 to January 2006. In 2005, he served in Iraq as a Judge Advocate General with the 155th Brigade Combat Team of the Mississippi Army National Guard.

Southwick also taught law as an adjunct professor at the Mississippi College School of Law and was a member of the American Inns of Court, Charles Clark Chapter.

Fifth Circuit nomination and confirmation

Southwick was nominated on January 9, 2007 by President George W. Bush to fill a seat on the Fifth Circuit vacated by recess-appointed Judge Charles W. Pickering, who retired at the end of 2004 because he could not overcome a filibuster launched against him by Senate Democrats.^[2] Previously, Bush had nominated Mississippi attorney Michael B. Wallace in the 109th Congress to replace Pickering, but his nomination also became stalled due to fierce opposition from Senate Democrats. Upon the Democratic takeover of Congress in the November 2006 elections, Wallace asked President Bush not to re-nominate him in the 110th Congress.

Finding itself without a nominee to a judgeship that had already sat vacant for two years, the White House turned to Southwick, then a nominee to a vacancy on the United States District Court for the Southern District of Mississippi. Bush had nominated him on June 9, 2006 to fill a vacancy on that court left by retired judge William H. Barbour, Jr.. Southwick had a hearing before the Senate Judiciary Committee on September 19, 2006 and was reported favorably to the floor of the Senate by the Committee on September 29, 2006. However, Southwick, like many other judicial nominees, failed to receive a vote by the full Senate before the 109th Congress adjourned for good on December 9, 2006. Pursuant to Senate rules of procedure, his nomination, along with many others, was returned to the President.

Southwick's successive federal nominations, within seven months of each other, though unusual, are not unheard of. The Bush White House did the same thing earlier with nominee Jerome A. Holmes, who was eventually confirmed to a seat on the United States Court of Appeals for the Tenth Circuit.

The Senate Judiciary Committee of the 110th Congress held a hearing on Southwick's nomination to the Fifth Circuit on May 10, 2007. The hearing was chaired by Rhode Island Democrat Sheldon Whitehouse. Just prior to the hearing, controversy arose over the nomination.

Southwick's nomination was opposed by the People for the American Way,^[3] the Human Rights Campaign,^[4] and the Congressional Black Caucus,^[5] who alleged that Southwick was racially intolerant and homophobic. Two cases that Southwick participated in as a state judge formed the primary basis for the groups' charges.

In the first case, Richmond v. Mississippi Department of Human Services, Southwick joined the majority opinion upholding the decision of the Mississippi Employee Appeals Board to reinstate a white state employee (Richmond) who was fired for a single incident of referring to a black co-worker as a “good ole nigger” outside of the co-worker's presence. When the black co-worker was informed of Richmond's comment, Richmond immediately apologized, and her apology apparently was accepted. The Appeals Board's decision to reinstate Richmond was based, in part, on a hearing officer’s opinion that the slur was only “somewhat derogatory” and “was in effect calling the individual a ‘teacher’s pet.’”.^[6] Bound by law to affirm a decision of the Appeals Board supported by substantial factual evidence, the court held it had no authority to set aside the findings in this case, even though Richmond's remark was "undoubtedly ill-advised and indicative of a rather remarkable insensitivity.".^[7]

On writ of certiorari, the Mississippi Supreme Court agreed that "the unique circumstances of this case do not warrant imposition of the ultimate penalty of dismissal." However, the court found the record was insufficient to uphold the Employee Appeals Board's decision that Richmond effectively receive no penalty whatsoever. It decided to remand the case "in order for the board to impose an appropriate penalty less than dismissal, or to make detailed findings as to why no penalty should be imposed."^[8]

The second case often cited by Southwick's critics is S.B. v. L.W., an 8-2 decision upholding a chancellor's decision to grant sole custody of an eight-year-old girl to her father, in part because the mother was a lesbian who had lived with several different partners during the child's life. Southwick joined the majority opinion as well as a concurrence written by Judge Payne which states, in part:

¶ 33. I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted.^[9]

After intense Democratic opposition, Southwick was reported out of Committee by a 10-9 vote on August 2, 2007 when Democratic California Senator Dianne Feinstein voted with the Committee's nine Republicans to send Southwick to the full Senate with a favorable report. Southwick was confirmed by a vote of 59-38 on October 24, 2007. Southwick's confirmation came almost ten months after his nomination to the Fifth Circuit and over a year after he was first nominated to a federal judgeship. Southwick was the fifth judge nominated by Bush to the Fifth Circuit and confirmed by the United States Senate.

Southwick was sworn in as judge of the Fifth Circuit on October 30, 2007. He maintains chambers in Jackson, Mississippi.

His first published opinion for the Fifth Circuit was Anthony v. United States, which was released on March 4, 2008. Southwick wrote for a unanimous three judge panel on an issue involving the valuation of private annuities for estate tax purposes. His first published dissent was in Louisiana ex rel. Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 2008) in which Southwick dissented from the assumption of federal jurisdiction under the Class Action Fairness Act.

Personal

Southwick is married and has two children. He is Roman Catholic. He is a member of the Mississippi National Guard where he has attained the rank of Lieutenant Colonel. He was deployed to Iraq in 2004-2005 in support of Operation Iraqi Freedom.

Works by Southwick

• Presidential Also-Rans & Running Mates, 1788-1996. Published by McFarland & Co., Jefferson, N.C., 1998 (2d edition)
• The Nominee: A Political and Spiritual Journey. Published by University Press of Mississippi, Jackson, Miss., 2013

See also

• George W. Bush judicial appointment controversies

References

Sources

• Leslie H. Southwick at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• White House Profile
• U.S. Department of Justice Nominee Resume
• Southwick Bio at the Mississippi Supreme Court
• Goodman, Julie, "Potential judicial nominees studied," Clarion-Ledger, January 2, 2007
• Kanengiser, Andy, "Bush selection for federal appeals court post under fire," Clarion-Ledger, January 10, 2007.
• Sayre, Katherine, "Bush nominates 2 in Mississippi for judgeships," The Sun Herald, January 10, 2007.
• Radelat, Ana, "Senate Dems win delay of Southwick confirmation vote," Clarion-Ledger, May 25, 2007.
• "An Unacceptable Nominee," The New York Times, June 5, 2007.
• Stuart Taylor, Jr., “Shortsighted on Judges,” National Journal, July 28, 2007
• Bolton, Alexander, "Feinstein's flip sends Southwick to the floor," The Hill, August 3, 2007.
• "Southwick: Judicial principle worth fighting for," Clarion-Ledger, August 3, 2007.
• "Qualified to Serve," The Washington Post, August 18, 2007.
• Radelat, Ana, "Southwick allowed more time to garner support," Clarion-Ledger, October 7, 2007.
• Kellman, Laurie, "Southwick Wins Confirmation," Associated Press, October 24, 2007.
• Stout, David, "Judge Opposed By Democrats Confirmed," The New York Times, October 24, 2007
• Recio, Maria, "Southwick approved for Fifth Circuit seat," The Sun Herald, October 25, 2007.
• "Southwick: Judge judged by region's history," Clarion-Ledger, October 25, 2007.