Tell the Senate: Bush Court Nominee Southwick Is the Wrong Choice—Vote ‘NO’

by Mike Hall, Oct 23, 2007

The U.S. Senate is set to vote this week on another out-of-the-mainstream Bush judicial nominee. This time it’s a Mississippi judge who wrote in a court decision that allowing employers to arbitrarily fire workers without cause “provides the best balance” between workers’ rights and employers’ rights.

President Bush has nominated Mississippi Appeals Court Judge Leslie Southwick for a lifetime seat on the U.S. Court of Appeals for the 5th Circuit. Southwick has a long record of siding with employers over workers and business interests over consumers. In a letter to the Senate urging Southwick’s defeat, AFL-CIO Legislative Director Bill Samuel says:

Judge Southwick has a record well outside the mainstream on labor and employment issues and has evidenced a clear antipathy towards workers’ rights.

Call your senators today at 202-224-3121 and tell them to block Judge Southwick’s lifetime appointment to the 5th Circuit. Click here to find your senators’ direct office numbers.

That long record has pleased Big Business, says Sen. Richard Durbin (D-Ill.).

A business group in Mississippi looked at 638 cases during an eight-year period of time and rated Judge Southwick as the judge on the Mississippi Court of Appeals most likely to rule against common, ordinary working people, employees suing their employers. Another study showed he voted with companies and employers, businesses and powerful interests in 160 out of 168 cases in which three was a split decision.

At his confirmation hearing, Southwick was asked if he could recall ever taking the side of a worker or consumer and he said he couldn’t recall a single such instance. Samuel notes that Southwick also was given extra time to search his memory for a pro-worker/consumer stance.

The same question was subsequently proffered to Judge Southwick in writing and again he responded in the negative. The answer raises serious questions about Judge Southwick’s ability to impartially evaluate consumer and worker claims.

When it comes to firing workers, a 1999 decision puts Southwick squarely in the employers’ pocket. Writing about the employment practice known as “employment at will”—that allows employers to fire or discipline workers for the most arbitrary of reasons—Southwick wrote it “provides the best balance of the competing interests in the normal employment situation.” 

Says Samuel:

This sweeping endorsement of “employment at will” raises questions about how vigorously Judge Southwick would enforce laws such as the National Labor Relations Act…the Civil Rights Act and other laws that protect employees in the workplace and limit “employment at will.” The overwhelming majority of private-sector union contracts contain the requirement that no employee shall be discharged or disciplined except for “just cause,” which is the antithesis of “employment at will.” Judge Southwick’s belief that employment at will constitutes the best form of workplace governance heightens our reservations about whether he can fairly consider employee claims.

Along with unions and other workers’ rights advocates, a wide range of civil rights, women’s, consumer and other groups oppose Southwick’s nomination. Wade Henderson, executive director for the Leadership Conference on Civil Rights (LCCR), says Southwick’s record

…raises too many questions about his commitment to civil and human rights for him to be entrusted, for life, with such an important position in our judiciary.

In one case, Southwick joined in a decision upholding the reinstatement of a white worker fired for using the “N-word” to condescendingly refer to an African American co-worker. When asked at his confirmation hearing if he stood by his vote in that case, he said he did.

Henderson says Southwick also

…has a troubling record in cases involving race discrimination in jury selection. He has routinely rejected defense claims that prosecutors struck African American jurors based on race. At the same time, however, he has usually upheld allegations by prosecutors that defendants tried to strike white jurors on the basis of race. One of Southwick’s own colleagues, in response, accused him of “establishing one level of obligation for the State, and a higher one for defendants on an identical issue.”

Southwick is the third Bush nominee for the 5th Circuit. Bush previously nominated Charles Pickering in 2002. The Senate refused to confirm Pickering because of concerns over his civil rights record, among other issues. Bush then bypassed the Senate and gave Pickering a controversial recess appointment. When Pickering achieved senior status, Bush submitted a nominee to replace him—one whom the American Bar Association found to be unqualified. After that nominee withdrew, Bush nominated Southwick. Says Samuel:

Judge Southwick is yet another highly controversial nominee to the 5th Circuit with a troubling record in worker rights and civil rights cases. We urge the Senate to reject his nomination and give President Bush an opportunity to nominate a moderate candidate for this seat.

For more on Southwick’s troubling record, visit the LCCR’s Save Our Courts website and check out the AFL-CIO BushWatch feature to find more information on Bush’s extremist nominees.

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