SMALL BUSINESS TAX RELIEF ACT OF 2007 -- (Senate - August 01, 2007)
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Mr. GRAHAM. Mr. President, I will try to be brief. I appreciate the recognition. I wish to speak very briefly on the matter pending before the Senate.
The whole idea of the confirmation process of judges has taken a kind of wrong turn for many years now. There is plenty of blame to go around from both parties. But one thing I wish to have happen in the Senate--for the good of the country--is to make sure when well-qualified people come before this body, they are put through their paces about their qualifications, their abilities, their disposition, their demeanor, inquiring as to how they think and what drives their thinking, but, at the same time, understanding that our job is to confirm people who are sent over by the President--elections do matter--and that when we look at a nominee, we part the politics of the last election, of the next election, and focus on the individual who will serve for a lifetime.
It is important to understand the nominee before this body, Mr. Southwick, has been serving as a judge in Mississippi since 1995. As Senator Specter indicated, he has been involved in thousands of decisions in a concurring role, and he has offered hundreds of decisions.
He joined the military, and volunteered, as a lieutenant colonel to go serve in Iraq at the age of 52.
The American Bar Association unanimously considered him well qualified, saying very glowing things about his temperament, his disposition. This is someone who has been looked at by people outside of politics and found to be extremely well qualified.
Mr. DURBIN. Mr. President, will the Senator from South Carolina yield for a question?
Mr. GRAHAM. Yes, sir.
Mr. DURBIN. I want to ask the Senator two or three questions about this nominee after he completes his remarks. I would be glad to wait until the Senator finishes.
Mr. GRAHAM. Absolutely. I will be glad to.
I do not want to infringe on the 5 minutes. But the bottom line, I guess to my good friend from Illinois, is, I do not think this is about qualifications at all. I think this man has lived a good life in the law and seems to be a good person, from what I understand from everyone who has spoken on his behalf. It is not a question about a character flaw or a lack of legal ability. It is about two cases.
As Senator Specter said, one case involved a racial slur that is a horrible term. The administrative review board, which took up that matter--should the person be fired because of this racial slur--found it was not a repeated event--under Mississippi law, it has to be more than an isolated event--it did not disrupt the workplace, there was an apology made and accepted, and the board found that this was not sufficient to terminate the person.
It went to the Mississippi Court of Appeals, and they, under Mississippi law, had to determine whether the administrative review board made an arbitrary and capricious decision, whether there is any evidence to support the court's finding, and they upheld the court's determination.
Judge Southwick, in that case, commented many times about how offensive the word was, and there is no place in society for this word to be used without it being considered to be offensive. But judges have to apply the law, not emotions.
I guess the question I have is, is there any belief on anyone's part that his concurrence in this upholding of the administrative review board suggests that he, as a person, is racially biased? Does this suggest he is defective as a person, that he harbors animosity against one group or another? I do not think anybody can reasonably conclude that.
Judges sometimes have to be involved in emotional decisions. If people want to march through Jewish communities holding the Nazi flag, that is horrible, but under the law that is allowed on certain occasions.
The second case is about the term ``homosexual lifestyle.'' It was a custody case, and he was in an appellate review situation. That term was used in the underlying decision by the judge in terms of custody, but that term has been used in many other cases throughout the country in different jurisdictions.
I guess my question is, do you take these two cases, where he concurred, to say there is something wrong with him? Did he do something out of the mainstream of the law? And does it show that he, Judge Southwick, is somehow not the type person you would want to sit in judgment of your case or your family?
I think what we are doing to him is incredibly unfair. There is no real evidence at all this man, as a person, harbors animosity against one group versus the other. Quite to the contrary, from everything I see in the record, he has been a very decent, scholarly man who has applied the law in an admirable fashion.
So I wish we could allow an up-or-down vote on this fine fellow.
I will yield for a question.
Mr. DURBIN. Mr. President, if the Senator from South Carolina will yield for a question.
Mr. GRAHAM. Yes.
Mr. DURBIN. Under the previous administration of President Clinton, there was considerable controversy in the Judiciary Committee about whether President Clinton's nominees would receive a hearing and a vote. In scores of instances, nominees were given neither.
Can the Senator from South Carolina put in the Record now whether Judge Leslie Southwick was given a hearing before the democratically controlled Senate Judiciary Committee?
Mr. GRAHAM. I believe he was, yes. I believe so.
Mr. DURBIN. I say to the Senator, he did receive such a hearing.
Mr. GRAHAM. Yes.
Mr. DURBIN. I attended the hearing. I thought it was very fair at allowing both parties to ask Judge Southwick questions.
Mr. GRAHAM. All right.
Mr. DURBIN. Since the sense-the-Senate resolution before us suggests Judge Southwick's name be removed from the Senate Judiciary Committee and brought directly to the floor, I wish to ask the Senator from South Carolina, has there been any effort by any Democrat on the committee to stop Senator Specter or any Republican from calling Judge Southwick's name for a vote in the committee?
Mr. GRAHAM. As I understand it, the problem with Judge Southwick is that it appears there has been some effort to try to get the Mississippi Senators to nominate someone else. And there has been the suggestion he could be a district judge but we want someone else to be the court of appeals nominee. I do not think that is a process we should engage in. So there are a lot of politics behind this nomination. We should not allow that to happen. We should not basically hold hostage the ability of the Senators from Mississippi and the President to put someone forward. If we think they are not qualified, vote them down. But playing politics, trying to change the nominating process, I do not think is kosher. And I think that is what is going on.
Mr. DURBIN. My question directly is this: Is the Senator aware of any effort to stop Senator Specter or any Republican Senator from calling Judge Southwick's nomination for a vote in the Senate Judiciary Committee?
Mr. GRAHAM. No. But I am aware of an effort to get Judge Southwick replaced with another person more acceptable to the Democratic majority and, basically, to take away from the President the ability to nominate a well-qualified person for this slot and, basically, neutralize the two Mississippi Senators, who I think have chosen wisely. I think that is politics that is dangerous for us to play, and I wish we would not do it.
Mr. DURBIN. I am going to ask the Senator to yield for a question. I see Senator Leahy has come to the floor.
I can say for the record--he can back me up--not only was Judge Southwick given a hearing--which many nominees in the previous administration were not given a fair hearing, I believe; and I think all present would say--there has been no effort to stop Senator Specter or any Republican from calling this nomination for a vote.
I wish also to ask the Senator from South Carolina, is he aware of the fact that the only African-American Congressman from the State of Mississippi, the Magnolia Bar Association, which represents most African-American attorneys in Mississippi, and the major civil rights group have expressed their opposition to the nomination of Judge Southwick?
Mr. GRAHAM. Yes, I understand there is some opposition from African-American elected officials. What I would say to that is, being a son of the South, I am very sensitive to all of this. I have lived all my life in South Carolina, and I understand the sins of the past. They are very real. I can remember growing up. My dad owned a bar where African Americans came into our bar and they had to buy their products to go. I remember that very well as a young man. I see things changing for the better, and we have a long way to go.
But what I see here, I say to my good friend from Illinois, is a man who has lived his life very well, who has been part of the solution, not the problem, who has never used the robe to impose arbitrary justice, who is trying to be a constructive member of the Mississippi judicial community, who has worked hard to make something of himself, and he is being accused of something he is not.
I do not care where the criticism comes from. What I am going to evaluate is what the facts are about this man. This is a good man, who has been a good judge, who is well qualified, and who is being unfairly labeled based on two cases that are being turned upside down. We are going to ruin the judiciary if we continue to play this game.
Mr. LEAHY. Mr. President, will the Senator yield for another question?
Mr. GRAHAM. Absolutely.
Mr. LEAHY. Mr. President, is the Senator aware of the fact that, formerly, when Judge Southwick was on the calendar as a nominee to be a district judge--Republicans were in charge--that when he was up for a vote, agreed to by the Democrats, he did not get a vote because of a Republican objection to a slate of judges? Is he aware of that?
Mr. GRAHAM. No, I was not. It is my understanding there was no objection on your side about him being a district court judge. Is that correct?
Mr. LEAHY. To answer that question, he was voted out for a district court judgeship, an entirely different type of judgeship than a court of appeals judgeship. It was in a package to be confirmed, I guess by unanimous consent, with the Republicans in leadership, and a Republican Senator from Kansas objected to one of the nominees, and, of course, it brought down the package.
If I understood the Senator correctly, he was worried about political actions. Was he aware--I know he was not able to make a couple recent markups of the Senate Judiciary Committee, although he is a member.
Is he aware of the fact that Mr. Southwick is on the agenda for tomorrow's markup?
Mr. GRAHAM. Yes, I believe I am aware of that.
Mr. LEAHY. Was he aware of the fact that he was taken off the agenda earlier at the request of the Republicans?
Mr. GRAHAM. Yes, I am, because it is my understanding, if I could reclaim my time--and I am sorry to run over, I say to my good friend from Ohio--here is what I think is happening. I think everybody was OK with him being a district court judge, except maybe somebody on our side, and if the problem with this man is he has associated himself in a way that disqualifies him because of a racial problem, why should he be a district judge? If his problem is that he is against people because of sexual orientation unfairly, why would he ever be a district judge? So the point is that if he was good enough for a district judge based on his qualifications, why shouldn't we give him an up-or-down vote in a fair way in terms of the court of appeals?
So I think what is going on here is that we are trying to replace the discretion of the President and the two Senators from Mississippi to play with a court of appeals nomination of Mississippi in a way that will come back to haunt all of us, and I just wish we wouldn't do it. Give this man an up-or-down vote on the floor.
Mr. LEAHY. Mr. President, if the Senator would yield on that point, when the Republicans were in charge of the responsibility of bringing forth his record, they never brought forth either the sexual or the racial issues that have been raised when he was up for district court judge. But we will discuss this tomorrow. I hope the Senator will be able to join us at the markup tomorrow. We have had a couple of occasions when the President's nominees for judges have been on our agenda and Republicans did not show up to make a quorum. I don't know if this helps to keep their numbers--I remind the Senator, however, that with the Democrats in charge, the time the Democrats have been in charge, President Bush's judges have been confirmed at a far more rapid pace and in greater numbers--in greater numbers--than they have been under a Republican-controlled committee or Senate.
Mr. GRAHAM. Mr. President, we will be there at the committee tomorrow, and I will yield the remainder of my time so we can get on with other business.