Finally Filling the Fifth

It's about time.

On Thursday, October 24, by a vote of 59-38, the Senate confirmed Judge Leslie H. Southwick to a lifetime seat on the U.S. Court of Appeals for the Fifth Circuit.  That might not seem like much.  But if you've been following the "Judges War" since George W. Bush moved into the White House, then you'd know it's actually quite something after all.

The judicial seat now filled by Judge Southwick has been without a Senate-confirmed jurist for more than eight years now -- since more than a year before the American people elected President Bush to his first term.  The vacancy opened when Judge Henry A. Politz retired from active duty on the Fifth Circuit in August 1999.  President Bill Clinton never nominated anyone to fill the seat, and, when President Bush did, the Senate refused to confirm his nominees ... until now.

That's right.  Though Judge Southwick was an exceptional Mississippi state judge and an outstanding nominee, he wasn't the President's first choice for the seat.  President Bush actually nominated two others to fill the vacancy.

During the first year of his presidency, President Bush nominated Judge Charles Pickering.  It seemed like an obvious choice since Pickering had already long been on the federal district court bench.  But liberal special interest groups almost immediately targeted the nomination by accusing Judge Pickering of being an Old South racist and, worse, of using his position as a judge to set back the cause of civil rights. 

Senate Democrats went along with the attacks -- never minding the truth of Judge Pickering's lengthy service to civil rights, as well as the endorsement of Charles Evers (brother of slain civil rights leader Medgar Evers).  As a result, though Judge Pickering eventually sat on the Fifth Circuit, he did so only temporarily, and without Senate approval, through a presidential recess appointment. 

The Democrats had successfully filibustered Judge Pickering, who not only was never confirmed, but also never even received a floor vote on his nomination in the Senate.  Judge Pickering retired when his recess appointment expired at the end of 2004 -- a casualty of the "Judges War."

Next up was Michael Wallace.  President Bush nominated Wallace to fill the same Fifth Circuit seat in early 2006.  Again, Wallace seemed more than qualified.  He was a former U.S. Supreme Court clerk, to then-Justice William Rehnquist, and a partner at one of the largest and most influential Southern law firms, specializing in appellate and complex litigation.  But, as if a broken record was being played, the liberal interest groups that attacked Judge Pickering made the same unfounded accusations against Wallace. 

This time, the specific charge was that Wallace undermined the cause of civil rights through his work on voting rights cases for the Republican Party and as the former chair of the Legal Services Corporation.  Once again, the Democrats steadfastly refused to move the nomination, which languished, and Wallace withdrew after the partisan minority that had successfully filibustered Judge Pickering became the partisan majority after the 2006 midterm elections.

After two failed nominees, the third time must have seemed like it was going to be the charm for the liberal special interests who really wanted no one to fill the Fifth Circuit seat under President Bush's watch. 

In early 2007, facing a newly Democrat Majority in Congress, President Bush nominated Mississippi appeals court Judge Southwick for that same vacancy.  And, once again, almost like clockwork, the attacks came, the same ones from the same liberal special interests that had doomed the previous two nominees -- namely, that Judge Southwick was racist and would undermine civil rights from the bench.

But then it happened.  Finally, at least one Democrat Senator took a long hard look at the real nominee and his actual accomplishments and true character.  As a result, Senator Dianne Feinstein (D-CA) voted in favor of Judge Southwick in the Senate Judiciary Committee, sending the nomination to the floor.  And, on the Senate floor, eight Democrats from states carried by President Bush in 2004, along with three Blue State Democrats, one Independent and all 49 Republicans, voted to actually take an up-or-down vote on Judge Southwick's confirmation.  Only three Democrats then defected and voted against confirmation.  Judge Southwick would not be the third victim of lies and half-truths for this seat.

It took eight years, two months and 14 days for the Senate to confirm someone to replace Judge Politz on the Fifth Circuit.  It's too bad that the counting has only just begun for so many others.