The Volokh Conspiracy
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So you think you want to be a judge? If so, then before you chart your course, you should read "The Nominee: A Political and Spiritual Journey," by Leslie Southwick, now a judge on the United States Court of Appeals. It is a sobering read that puts a human face on the deterioration of the judicial confirmation process, beginning with the "Borking" of Robert Bork, then spiraling downward to the eventual decision by the Democrats to begin the practice of filibustering circuit nominees, and finally the decision to abrogate the "filibuster deal" and invoke the nuclear option to ram through President Obama's nominees.*
Judge Southwick's confirmation carnival may have been the nadir in the judicial confirmation process as it had pretty much the full range of dysfunctions in the modern confirmation process: blatant distortions of his record, interest-group politics that had nothing to do with his record, repeated Senate obstructionism of well-qualified candidates, the partisan hackery of the ABA's judicial vetting process on full display, the complicity of the so-called mainstream media (especially the New York Times) in propagating Democratic distortions and talking points, and finally in the end, the luck of an unexpected ally who actually finally helped to get him through. It is a grim read.
Judge Southwick's dream to become a judge dated back over a decade before he was was actually nominated by President George W. Bush to the 5th Circuit in 2005. Southwick was first recommended by Mississippi senators for a seat on the 5th Circuit in 1991, to replace the retiring Charles Clark and then again in 2004, as well as for a district judgeship in 2004 and 2006. In the meantime, he served in the Justice Department, went to Iraq as a JAG officer, served 12 years on the Mississippi Court of Appeals, and hobnobbed with multiple Presidents and Presidential aspirants.
One is left with at least one indelible impression-Leslie Southwick really wanted to be a judge. He was willing to do almost anything-including walking across Mississippi to win election as a state judge. Regardless of the passage of time and multiple setbacks, he tenaciously pressed onward. It is clear that his dream was to get the black robe, and worked tenaciously do so. One suspects that his experience is not representative of most of those who finally achieve a federal judgeship, but in showing one of the more extreme cases, Southwick illustrates the system at its worst. (Of course, it could've been even worse-he could have been a Republican and a graduate from a top-10 law school with a Supreme Court clerkship, which would've really been the kiss of death).
Even then, Southwick needed some good fortune before the nominating roulette wheel hit his number-although as he ruefully admits, his good fortune was the result of others' bad fortune. His path to the 5th Circuit began in 1999 when Judge Henry Politz in 1999. The political wrangling around Politz's seat began immediately-as Southwick describes, although Politz's seat was in Shreveport, La., for various political reasons it had been decided that his replacement would be from Mississippi. President Clinton, working in collaboration with Mississippi's Republican Senators (especially Trent Lott) moved toward nominating Bob Galloway. At that point, however, the political travails began.
Galloway's problem was that he was a white male-a flaw that would come to dominate the wrangling over Politz's replacement for the next eight years. As such, Galloway apparently was opposed by the Magnolia Bar Association, which Southwick describes as a Mississippi association of black lawyers. For whatever reason, even though he had the blessing of Mississippi's Republican senators, Clinton never ended up nominating Galloway and his nomination died with the election of President George W. Bush.
From that inauspicious start, the process rapidly went downhill into the swamps of racial and ideological politics. Bush's first nominee to the seat was Charles W. Pickering, who had been appointed to the U.S. District Court in 1990 by President George H.W. Bush. Somewhat implausibly, Pickering was attacked by liberal interest groups for supposed racial insensitivity, despite the fact that in 1964 he had left the Democratic Party over its racism to help found the Mississippi Republican Party and in his early career as a prosecutor worked with the FBI to attack the Ku Klux Klan. Nevertheless, Pickering was one of the first batch of Bush judicial nominees filibustered by the Democrats in the Senate. After repeated efforts at cloture, President Bush eventually appointed him as a recess appointment to the 5th Circuit and eventually he chose not to resubmit his name for confirmation.
The next nominee up was Mike Wallace, a highly-accomplished Jackson lawyer, former law clerk for William Rehnquist on the Supreme Court, and former head of the Legal Services Corporation (and with whom I became acquainted when I taught at Mississippi College from 1996-1998). Perhaps even more implausibly than the allegations of Pickering's supposed racial insensitivity, Wallace was deemed "Not Qualified" by the ABA's judicial vetting panel supposedly for his "judicial temperament," which was widely (and correctly) viewed as little more than a smokescreen for dislike of his ideology and animosity on the part of ABA activists over his tenure as head of the Legal Services Corporation. Nevertheless, critics seized upon the ABA's rating as grounds to oppose him and eventually he withdrew his nomination.
Finally, after all this, the nomination fell into Southwick's lap (to which he sincerely expresses mixed sentiments about the unseemly process that eventually produced that result). Southwick describes much of the inside baseball associated with the process, as politicians equivocated between nominating him for the U.S. District or Appeals court. Eventually the 5th Circuit nomination broke his way, but he soon ran into his own firestorm of controversy, as once again racial interest groups objected to the nomination. Those interest groups and Democratic politicians eventually seized upon two of the hundreds of opinions that he voted on during his time on the Mississippi Court of Appeals as the purported basis for their opposition.
Note that I did not say "opinions that he authored" but "cases that he decided"-these were cases on which he been in the majority but had not written an opinion. The first was a case that essentially dealt with the standard of deference to factual findings of an administrative Employee Appeals Board in an employment law claim that involved a racial slur (the Court of Appeals opinion was later upheld by the Mississippi Supreme Court). The second had to do with his consent to a concurring opinion affirming a lower court's opinion involving a child custody battle between a father and a bisexual mother, which among other things involved a statute that instructed the trial judge to consider the mother's bisexuality in the custody determination (and which was constitutionally valid). He wrote in neither case and both cases essentially turned on the degree of deference to be granted to the opinions of lower courts and, in the latter, on a express statute. Those cases soon spawned the brouhaha that would follow.
The remainder of the book describes a lot of the inside baseball of how his nomination finally made it through the Senate and he was eventually confirmed. I won't try to summarize it all but it is required reading for anyone thinking of subjecting themselves to the meat-grinder of a judicial nomination in today's environment. The substantive ignorance and crude political pandering of many of Southwick's critics is disheartening (to put it mildly) and suggests real concern about the integrity of the system. At one Southwick compares the gruesome process unfavorably to his experience campaigning to be elected judge in Mississippi, which seems fairer and more transparent than the modern judicial appointments process. I should note that he may be joking when he says that, but given the outsized influence of interest groups in the federal nominations and confirmation process today, especially in being able to block nominations, it is worth thinking about whether the imperfect system of electing judges is really inferior to the federal system (and note that almost every state has chosen not to follow the federal process for selecting judges).
There is one element of the book in which I was somewhat disappointed (but many others may actually like). The subtitle of his book is "A Political and Spiritual Journey" and the latter part of the subtitle is one reason I picked up the book in the first place. I am a fan of books by intelligent and thoughtful people on their spiritual and religious journeys, such as in Clarence Thomas's rediscovery of his faith during his ordeal (and embrace of Catholicism) as recounted in "My Grandfather's Son" and C.S. Lewis's beautiful and moving "Surprised by Joy." On this point, while Southwick's faith was obviously a source of comfort and strength (and interesting to me, as his Catholic experience in Mississippi brought back memories of my time there) I wouldn't necessarily call it a "journey," in that his faith seemed to have started and remained strong throughout the process. Nevertheless, it was interesting to read the role that his faith played in guiding him and inspiring him as he went through the long efforts that finally culminated in accomplishing his dream. From that sense, while it didn't seem so much a "journey," it was nevertheless an interesting insight on the role mature faith can play in guiding one through life and its various ups and downs.
For his part, Southwick is the embodiment of class and charity throughout his telling, even as the descent into the confirmation wars becomes increasingly surreal and bizarre. Indeed, his graciousness and self-awareness itself speaks to the preposterous and mean-spirited nature of the attacks on him. In the end he reached the goal he had started to pursue some 15 years earlier, but the ordeal brings to mind Ray Donovan's famous quip about asking to which office he should go to get his reputation back.
I'll close with a quote from a review on "Above the Law" a while back that nicely summarized many of my feelings after reading the book:
The man's warmth and geniality come through on the page. After Southwick's nomination clears committee and reaches the Senate floor, Arlen Specter explains Southwick's ultimate success with the committee by saying "many people helped, but the key person was [Southwick himself] and how [he] came across to people. Nice."
In documenting his experiences as he has, Judge Leslie Southwick provides an informative history of the judicial nomination process, but he also humanizes a journey most of us will never take. No matter what you might have thought of the judge's jurisprudence or political affiliations prior to reading the book, by the end of The Nominee, you want to confirm Leslie Southwick.
*As an aside, I will also add that I have long been on the record for believing that the filibuster of judicial nominees was wrong and probably unconstitutional (although any remedy would be unclear), so I am actually pleased that the precedent established by the Democrats of routinely filibustering judicial nominees has been abrogated. Because the judicial branch is dependent for its composition on the actions of the Executive and Legislative branches, it has always been my view that both the nomination and "Advice and Consent" obligations imply a duty to act in a timely manner with respect to judicial nominees. Thus, while the dispute is often seen as a conflict between the Executive and Legislature (which indeed, it is for Executive Branch appointments) the Judiciary's status as an independent third branch implies a duty of timely action on behalf of the President and Senate.
In a move reminiscent of Charlie Brown's endless faith that Lucy will not pull away the football when he goes to kick it, I am also bewildered that apparently there is some talk among Republicans of resuscitating the filibuster for judicial nominees, as if that would be likely to be sustained the next time the Democrats take power. I won't belabor the point other than to say that I largely agree with Boyden Gray and Orrin Hatch on this point.