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Wrong…Very, Very Wrong

feinsteincoverfaceinshame.jpgI have been meaning to get back to the vote in the SJC on the nomination of Judge Leslie Southwick to the 5th Circuit Court of Appeals — and Sen. Dianne Feinstein. 

I had heard through the Beltway grapevine that the only reason that Sen. Pat Leahy called the Southwick nomination for a vote was because he had done a couple of whip counts.  I was told by a couple of sources that Leahy thought he had solid Democratic votes against Southwick across the board and knew it, which meant the Southwick nomination would never get out of the committee.

But then, I was told, Feinstein changed her mind, after a conversation with Trent Lott wherein Lott asked her to take a second look at Southwick, and…voila!…she provided the pass through vote much to her Democratic colleagues’ shock and the Bush WH’s delight.

The President is pleased that Judge Leslie Southwick will soon receive a fair up or down vote by the full Senate. Today’s bipartisan vote of support by the Senate Judiciary Committee is a refreshing victory for America’s judicial system.

I was told that Feinstein had not notified Leahy of her decision on Southwick, so I called her office to ask about this.  Her office says that is not correct. 

Feinstein’s office maintains that Leahy was, indeed, informed, that Sen. Feinstein had not fully made up her mind on the vote one way or the other until just prior to the committee vote, and that she, herself, personally informed Leahy that she would be voting to pass the nomination out of committee.  There was a discussion with Sen. Feinstein and Sen. Lott on the floor of the Senate in which Lott asked Feinstein to take a second look at the nominee and to meet with him, which she did prior to the vote.   In fairness to Sen. Feinstein, one of my sources had also told me that Sen. McConnell was part of a conversation with her, but Sen. Feinstein’s office says she doesn’t recall having any conversation with Sen. McConnell about the Southwick nomination whatsoever.

I have gone back to my prior sources, and they stand by what they told me. 

Why am I bothering to go back to this particular vote on a single federal judge that hasn’t gone to a full Senate floor vote as yet?  Because we cannot afford another Feinstein cave-in.  As Dover Bitch at Digby’s pointed out, Feinstein (in her best Specter tribute) pretended to grow a spine, but only for a fleeting moment of public consumption. To wit:

“Many of us feel very badly burned because of what both Justice Alito and Justice Roberts told us about their belief in stare decisis,” said Sen. Dianne Feinstein (D-Calif.), a Judiciary Committee member who voted against both nominees. “So we will be very very cautious with respect to the next nominee — very cautious.”

Feinstein said this just two weeks prior to voting Southwick through the SJC. Two freaking weeks. That’s a mighty abundance of caution there, Di.

I’m left with a dilemma — which side is more credible and, even more worrisome, why did Feinstein vote Southwick through at all?  How could something that looked so sewn up have squeaked through in a vote that seems to have been a big surprise in some quarters on the Democratic side of the aisle in the SJC?   We cannot afford this sort of screw-up with a new AG nomination lurking in the wings (H/T AZ Matt) — not to mention that federal judges are appointed to the bench for life.  This is too important for guess work, so I’m going to continue digging.

Why am I appalled at a vote for Southwick? This is why:

…Why are so many unions opposed to Southwick? Because Southwick voted against the interests of injured workers and consumers in divided decisions 89 percent of the time. Why are civil rights groups opposed? Because he also voted overwhelmingly — 54 of 59 times — against defendants alleging juror discrimination. That prompted his own colleagues on the Mississippi Court of Appeals to accuse him of “establishing one level of obligation for the State, and a higher one for defendants on an identical issue.” Southwick, they charged in a dissent, placed his “stamp of approval on the arbitrary and capricious selection of jurors.”…

Federal appeals courts are the final arbiter in shaping much of the law, and it is increasingly clear just how great an impact Bush-appointed judges are having on civil rights and liberties and on worker and consumer protections.

Just as the Bush Administration has attempted to reshape the DOJ into its own political tool, so are they trying to reshape the federal bench into an active undermining of long-standing precedent, putting a successive string of judges in place, from top to bottom, who are willing to forgo decades of case law in a wholesale throwing out of individual liberty and consumer protection precedents in favor of ruling however is necessary to keep the bottom line keeping on.

And while the chamber of commerce and the anti-union crowd is cheering, American workers are getting the shaft.  And so are people of color and women.  If you think this is not a concerted effort by conservatives to reshape America in their greedy, corporate bottom line image whatever the laws of our nation may say to the contrary…think again.  But don’t take it from me — take it from Varrie Richmond.  (Warning:  This one is tough on your blood pressure.)

What it all boils down to is this: is this person nominated by the Bush Administration the right person for all of America?  For the nation’s Attorney General and for the Federal bench, we can — and must — do better.

We cannot let this administration pack our courts with judges who share its disrespect for law and lack of compassion for the powerless. These nominees have turned their backs on our most fundamental rights and freedoms. The Senate should turn its collective back on Leslie Southwick and those like him.

Disrespect for legal precedents based on ideological activism is inappropriate — the rule of law must be respected. Packing the nation’s court system to force a non-precedential, activist conservative ideology on the whole of the American public regardless of the written laws is simply wrong.  Especially when such decisions cut against the very intent of Congress in protecting the rights of those who otherwise would have very little protection in the workplace and in society as a whole.

I have spent a considerable amount of time trying to piece together exactly what happened with the Southwick nomination.   Why did Feinstein vote for him at all, given her stance just two weeks prior and his abysmal record on the bench on a whole host of issues?  Was she only applying this close scrutiny to Supreme Court nominees?  Her office assures me that she takes every nomination seriously and looks closely at their records — but after perusing Southwick’s judicial record myself, I cannot see any good reason for any Senator committed to the rule of law rather than conservative ideology to support him.

Why, if Feinstein was voting to allow him through the SJC, did Leahy call the vote in the first place?  How did signals get so crossed on something like this?  And why, as rumor has it, is Trent Lott crowing about a victory on the Feinstein vote for Southwick?  Like I said, I’m going to keep digging on this.

At some point, the long-term national interest must come ahead of personal expediency and political calculations.  We cannot afford this sort of screw-up on something this important going forward.  To Senators:  Take a stand against political cronyism and demand excellence and integrity at all levels — the nation deserves better.  We expect you to stand up when it counts.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com