[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]

On August 2, the Senate Judiciary Committee voted to approve the nomination of Leslie Southwick to the United States Court of Appeals for the 5h Circuit.  Southwick has served for eleven years on the Mississippi state appellate court.  He has been an adjunct professor of law at Mississippi College of Law for over ten years.  He was honored by the Mississippi state bar with its judicial excellence award in 2004.   The American Bar Association found him to be “well-qualified” to serve as a federal judge.  (He was approved by the Senate Judiciary Committee for a seat on the federal district court in 2006; however, when he did not receive a vote on the Senate floor before Congress adjourned, President Bush nominated him to the circuit court when the new Congress convened.)

Yet, his nomination was held up in the Senate Judiciary Committee for months.  Senator Leahy, chairman of the Committee, reported that all Democrats on the Committee would vote against him, and he would, therefore, not be reported to the floor, for a vote by the entire Senate.  On Thursday, Senators Mitch McConnell, Republican leader in the Senate, and Arlen Specter, ranking minority (Republican) member of the Senate Judiciary Committee, introduced a resolution in the Senate calling for a vote by the full Senate on this nominee.  Subsequently, one Democrat, Senator Dianne Feinstein of California, voted in favor of Southwick’s nomination.  Thus he received sufficient votes, and was reported out of committee to the Senate floor, where he should receive a “yes” or “no” vote.  

It must be noted that some opponents of Judge Southwick are calling for a filibuster against him, to prevent him coming up for a vote before the full Senate.  This is highly innovative and unusual.  The Democratic Party is in the majority; thus, the call is for the Democratic Party to filibuster itself.  For, obviously, there is a straightforward, ordinary way by which the Democratic Party, and individual senators, could ensure that Southwick does not become a member of the U.S. Court of Appeals for the 5th Circuit, that is, they could vote against him.  Since they have more than 50 votes, that would defeat his nomination.  There is no reason for the Democrats to filibuster themselves, so that Southwick does not even come up for a vote.  Or is there?

The fact is that Judge Southwick is well-qualified, as the ABA said, to be a federal appellate court judge.  The opposition to him is political – his opponents do not think he would be the kind of judge they want.  Fair enough, you might say; after all, politics is politics; the Democrats are under no obligation to approve him.  And you would be correct, so far as it goes.  But your point ignores this: the Democrats can deny him a seat on the court by voting against him.  But the problem appears to be that votes are recorded.  In other words, if the Democratic Party rejects his nomination, the vote of each Senator will be recorded, as it is with every vote.  It will then be “fair game” for any senator’s constituents to ask him or her, “What were your reasons for voting against Judge Southwick?”  If the Senator does not have good reasons, that constituent may decide to vote for someone else for the Senate in the next election.

Now that is “politics.”  It holds elected officials responsible for their votes.  This is no surprise; it is what democracy is all about – and it would be ludicrous for Democratic officials to hide from the consequences of a vote by invoking a “majority filibuster,” which is an oxymoron if there ever was one.

The problem is that some members of the Democratic Party appear to confuse the role of the judge with that of the legislator.  A legislator is elected to make decisions on behalf of his constituents. He or she serves with other elected representatives, many of whom will have contrary views on various issues.  Thus, the first legislator will have to figure out ways, through compromise and negotiation, to achieve the best he or she can for what the constituents want.  Again, as Churchill notes, it is not pretty, but it is democracy, a form of government most people judge to be the best achievable by fallible human beings.  

However, those who want judges to decide disputed policy issues are confusing the judge’s role.  A judge is to be an impartial arbiter, not a partisan.  It is hard to believe anyone would want otherwise, for what one judge gives you (or “your side”) today, a different judge could take away tomorrow.  I would think the vast majority of Americans want judges to decide their case without partisanship.

Still, as noted, many lobbying groups and some Democratic members of Congress appear to want judges to replace legislators.  I think that is wrong, as a matter of constitutional interpretation, US history, and good policy.  But perhaps I am wrong.  If so, it is up to those who support “activist judges” to publicly make their case, cast their vote, and take the consequences.  That is what the holdup with the nomination of Judge Southwick has been all about – obstruction without accountability.  Now that he has finally been moved to the Senate floor for a vote, we will see if the proponents of judicial activism will try the same strategy there.  If they do, the American people will, in the upcoming elections, hold them accountable.  That’s politics, and that, at least, is what the Framers intended.