July 23, 2007
The Wall Street Journal
It isn't easy to get Republican moderate Senator Arlen Specter into a fighting partisan mood. But Democrats are achieving this rare feat as they continue to block nearly every nomination by President Bush to the federal appeals courts.
After six months in charge of the Senate, Democrats have approved exactly three appellate court judges. Last Tuesday, the White House announced four more appellate nominees, taking to nine the number now in a Senate holding pattern. Several circuits are in dire need of new judges to cover the work load, but Democrats are betting they can drag things out long enough so Hillary Rodham Clinton or Barack Obama get to fill these posts.
It's important to understand how unusual this is. The Senate and White House have often been run by different parties in the last two years of a Presidency, and at least some judicial nominees have been confirmed. In the last two Reagan years, Democrats confirmed 16. And in the last two Bill Clinton years, Republicans confirmed 15.
During the Clinton years, then-ranking minority member Patrick Leahy was the one deploring judicial vacancies. In February 2000, he lamented that "The Senate is back to a pace of confirming one judge a month. That is not acceptable, does not serve the interests of justice and does not fulfill our constitutional responsibilities." Hmmm. One a month sounds lightening-quick compared to the pace under Senator Leahy's own Judiciary Committee. And that complaint of stalling tactics came seven months closer to a Presidential election than we are today.
The current Senate stonewall has been on particular display in the case of Mississippi State judge Leslie Southwick to the Fifth Circuit Court of Appeals. And that's what has Mr. Specter, the ranking Republican on Judiciary, fired up. Recently he called some conservative activists into his office to disclose that after Judge Southwick was nominated in January, Mr. Specter received explicit promises from Democrats that the nominee would get an up-or-down vote on the Senate floor.
Judge Southwick's nomination was once considered a consensus choice. No one disputes his qualifications, and as a judicial moderate he had been unanimously approved by Democrats for a seat on the federal district court. But the judge has since run afoul of what appears to be a new Democratic racial litmus test for judges from the South. "Mississippi has never had an African-American on the circuit even though it has the largest African-American population of any state," Mr. Leahy remarked last month. Perhaps Mr. Bush could nominate someone more racially suitable, he suggested.
In case this racial quota idea didn't fly, Democrats have also played the familiar race card. Of particular "concern," they claimed, was Judge Southwick's concurrence in a Mississippi decision regarding an employee who wasn't fired after using a racial slur in comments about a co-worker. That case was one of more than 6,000 opinions that Judge Southwick signed or joined. But let's take a closer look, shall we?
Though the racial slur makes the headlines, that's not what the court's ruling condoned. The decision in Richmond v. Mississippi Dept. of Human Services was narrow, affirming the ruling of an employment board created by Mississippi law and given broad latitude to set hiring and firing policies across the state. In reviewing the board's decisions, Mississippi courts must follow specific parameters -- they can only overturn based on a finding of legal error or "arbitrary and capricious" judgment. In other words, by affirming the board's decision, the court's ruling was not on whether it considered racial name-calling grounds for firing, but whether the state board had made distinct and material errors.
Many from Judge Southwick's past have stepped forward to support him. His former African-American law clerk A. La'Verne Edney spoke with particular dismay at the racial charges. "It did not matter the parties' affiliation, color or stature," she wrote about his judicial approach, "what mattered was the law." Now a partner in a Mississippi law firm, Ms. Edney added: "It is unfortunate that there are some who have made [Judge Southwick] the chosen sacrifice to promote agendas and have set out to taint all that [he] has worked so hard to accomplish."
Mr. Leahy's posse maintains that the broader point is the need for more African-Americans on the bench. But African-American judicial nominees don't fare well at the hands of Democrats either. When President Bush nominated Janice Rogers Brown to the D.C. Circuit Court of Appeals, liberal activists called her nomination "window-dressing." Claude Allen's nomination to the Fourth Circuit was opposed by the NAACP. And Justice Clarence Thomas is regularly denounced by those who claim to care about diversity on the bench.
It's hard to get straight answers on this subject, so we were glad for a recent article in the Afro-American Newspapers that at least had the benefit of honesty. "[Judge] Southwick," the paper noted, "is considered by civil rights groups to be too conservative to serve on the Fifth Circuit." That breaks the Democratic code, and we hope Mr. Specter and Republicans are willing to make judicial nominations a very public brawl.
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