Statement of Senator Carl Levin on the Nomination of Leslie Southwick to the Fifth Circuit Court of Appeals

October 24, 2007 -- "Mr. President, I will oppose the nomination of Leslie Southwick to the Fifth Circuit Court of Appeals because I have serious questions about his ability to be an impartial jurist.

I am concerned that Judge Southwick’s views of racial discrimination in jury selection reflect a lack of adequate respect for Supreme Court precedent. In Batson v. Kentucky, the Supreme Court ruled against preemptory dismissal of jurors without stating a valid cause for doing so may not be used to exclude jurors based solely on their race.

The contrast between Judge Southwick’s votes in jury challenge cases is particularly troubling. In the majority of cases where African-American defendants have challenged their convictions on the ground that the prosecution used peremptory challenges to strike African-American jurors, Judge Southwick voted against the defendant’s challenge. Further, in the majority of cases where African-American defendants challenged their convictions on the ground that the prosecution had unfairly prevented them from using their peremptory challenges to exclude white (or in one case Asian American) jurors, the defendants, with Judge Southwick joining the majority, lost the challenges.

There is other evidence of racial insensitivity that concerns me. In Richmond v. Mississippi Department of Human Services, Judge Southwick joined a 5-4 ruling upholding the reinstatement of a white state social worker who had been fired for referring to an African American co-worker as a “good ole n*****” during a meeting with high level company officials. After she was fired, Richmond appealed her termination to the state Employee Appeals Board (EAB), which ordered her reinstatement. The hearing officer opined that Richmond’s use of the racial slur “was in effect calling the individual a ‘teacher’s pet.’” On appeal, Judge Southwick joined a majority that held that the use of the racial slur was “not motivated out of racial hatred or animosity directed at her co-worker or toward blacks in general, but was, rather, intended to be a shorthand description of her perception of the relationship existing between the [co-]worker and [a] DHS supervisor.”

In dissent, two judges criticized the hearing officer and majority opinion for having a “sanitized version” of the facts and for suggesting that “absent evidence of a near race riot, the remark is too inconsequential to serve as a basis of dismissal.” The dissent found that the racial epithet of “n*****” is “inherently offensive, and [its] use establishes the intent to offend.”

The ruling Judge Southwick joined was unanimously reversed and remanded on appeal by the Mississippi Supreme Court.

Further, in Brock v. Mississippi, a case which upheld a criminal conviction where the prosecution used a preemptory challenge against an African American juror purportedly because he lived in a high crime area, the dissenting judge criticized Judge Southwick’s opinion for accepting the action of the prosecutor, which, “on its face appears geared toward a racially identifiable group.”

Some have tried to make the point that Judge Southwick did not write most of these opinions; rather that he merely signed on to them. If Judge Southwick did not agree with those opinions, he could have dissented. If he agreed with the holding but not the reasoning, he could have written a separate concurrence. To the contrary, he simply voted with the majority and supported their opinions.

Because I do not believe that his record reflects the objectivity and even-handedness necessary to serve in a lifetime appointment on the federal bench, I cannot vote to confirm his nomination."

Source: Senator Carl Levin

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