Executive Session

Floor Speech

By:  Lindsey Graham
Date: Oct. 24, 2007
Location: Washington, DC


EXECUTIVE SESSION -- (Senate - October 24, 2007)

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Mr. GRAHAM. Mr. President, I would like to echo the sentiments of Senator McCain and add my two cents' worth to this debate. In this regard, there will be some good news today. I anticipate that this fine man will have a vote on the floor of the Senate, that the cloture motion will pass, and we will allow an up-or-down vote and he will get confirmed.

To my two colleagues from Mississippi: Well done. You have sent to the Senate an unusually well-qualified candidate by any standard you would like to apply to a person in terms of his humanity, his intellect, and his judicial demeanor. It is one of the best selections I have had the privilege of reviewing since I have been in the Senate.

The unfortunate news is that we are having to go through this particular exercise to get 60 votes. Quite frankly, I think the accusations being made against Judge Southwick are unfounded and just political garbage, to be honest with you.

He has received the highest qualified rating from the American Bar Association. Everyone who has ever served with Judge Southwick, in any capacity, whether it be as a judge, a lawyer, or private citizen, has nothing but glowing things to say about the man. And really, we are trying to use two legal events to cast doubt over the man. Six hundred cases he has sat in judgment upon, and the American Bar Association has reviewed all these cases, I would assume, and come to the conclusion that he is at their highest level in terms of judicial qualification.

Judge Southwick has done things as a person that have really been beneficial to Mississippi. He has tried to bring out the best in Mississippi. These are the types of people you would hope to represent the State of Mississippi--or any other State, for that matter--in terms of their demeanor, their tolerance, their willingness to work together with all groups to move their State forward.

Now, the two cases in question are just complete garbage--the idea that the term ``homosexual lifestyle'' was used in an opinion that he concurred in involving a custody case. That term, if you research it in the law, has been used in hundreds of different cases--over 100 cases. President Clinton mentioned it in 1993 when he was talking about his policy regarding the military. It is a term that was used in the Mississippi court cases that were the precedent for the case involved. And to say that he concurred in an opinion where the authoring judge used that term has somehow tainted him means you better go through the records and throw a bunch of judges off, Democrats and Republicans. That is ridiculous, completely ridiculous, and if applied in any fair way would just be--it would be chaos. You would have politicians, you would have judges, you would have people from all over the country who somehow, because of that term having been used in a judicial opinion, couldn't sit in judgment of others. That is ridiculous. Just go search the record of how this term has been used. To suggest that it means something in Judge Southwick's case but no one else's has a lot to say about this body, not Judge Southwick.

Now, the other case, he was sitting in judgment of an administrative board that decided not to dismiss an employee who used a racial slur in the workplace. To suggest that by somehow giving deference to the administrative board, whether or not their decision was capricious and arbitrary--the review standard at the appellate level--he embraces this term or is intolerant is equally ridiculous. I have an administrative board in the State of Mississippi that is an expert in the area of employment discrimination law, hiring and firing practices. The case is decided at the administrative level, and it comes up to appeal, and every judge involved says this is a terrible word to use but, as a matter of law, the board's finding it was an isolated incident did not justify a complete dismissal was the issue in the case.

Now, do we really want to create a situation in this country where the judges who want to get promoted will not render justice or apply the law, that they will be worried about themselves and what somebody may say about the context of the case? Are we going to get so that you cannot represent someone? What about the person who was being accused of the racial slur? What if you had represented them? Would we come here on the floor of the Senate saying: My God, you represented someone who said a terrible thing; therefore, you can't be a judge? I don't know about you, but as a lawyer, I have represented some pretty bad people. It was my job. And judges have to apply the law and use their best judgment.

So I hope this man will get an up-or-down vote and that this garbage we are throwing at our nominees will stop.