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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 16, 2007
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Dems Deny Justice to Southwick

Justice delayed is justice denied. With Democrats in charge of the United States Senate and Patrick Leahy of Vermont chairing the Senate Judiciary Committee, there's been plenty of that kind of justice denied. But there is good news: that denial of justice to Mr. Southwick threatens to explode in the Democrats' faces.

Key Senate Democrats seem to be refusing to learn from a fellow Democrat's malicious and monumental miscalculation. Just as now former Durham County, North Carolina District Attorney Michael B. Nifong shamelessly pretended to have a plausible case against white Duke lacrosse players whom he knew to be innocent (because it would win him the votes he needed to keep his job, his duty to be a fair and objective minister of justice be damned), Senate Democrats are pretending they have reasonable grounds to deny a timely vote, and even confirmation, to federal appellate court nominee Leslie Southwick, a white Mississippian, their duty be damned.

Justice delayed is justice denied. With Democrats in charge of the United States Senate and Patrick Leahy of Vermont chairing the Senate Judiciary Committee, there's been plenty of that kind of justice denied. But there is good news: that denial of justice to Mr. Southwick threatens to explode in the Democrats' faces.

Confrontation is coming!

In a July 12, 2007 article in The Hill (not a reference to the female Democrat presidential hopeful) entitled "Specter says Dems broke their promise," Alexander Bolton wrote:

"Sen. Arlen Specter (Pa.), the ranking Republican on the Senate Judiciary Committee, has fired an early volley in what Senate Republicans and conservative activists predict will escalate into another pitched battle with Democrats on judicial nominees.

"Specter has accused Senate Majority Leader Harry Reid (D-Nev.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.) of breaking promises they made regarding Leslie Southwick, President Bush's pick for the 5th Circuit Court of Appeals.

"Specter aired his grievance with Reid and Leahy during a private meeting with leading conservative activists late Tuesday afternoon. Specter told those assembled that he was prepared to battle Democrats and asked if they also had an appetite for a fight, according to several people who attended the meeting. The activists assured Specter that they were eager to confront the Democrats on Southwick."

AS THEY SHOULD BE! Mr. Southwick not only is entitled to a timely up-or-down vote, but highly qualified to be a federal appellate judge.

Senator Specter acted boldly. As Mr. Bolton wrote, "Specter and Leahy have had collegial encounters on judges, especially when measured by the partisan standard set by the committee in recent years. By faulting Democrats for ignoring assurances they made in private negotiations, Specter has cast aside the drape of politesse that often hides behind-the-scenes Senate skirmishes."

What inspired Senator Specter?

"Discontent over the progress of Southwick's nomination reached a boiling point Tuesday because early in the day Reid told Sen. Thad Cochran (R-Miss.), Southwick's chief advocate in the Senate, that the nomination had no hope of confirmation, according to GOP sources.

"'I'm informed that Senate Majority Leader Reid told McConnell that he would bring [Southwick] to the floor before the Memorial Day recess," Specter said in an interview. "That was undercut by Judiciary Committee action."

I'd have said INaction, but the Senator chose to emphasize a stalling tactic by a Democrat committee member, so bravo, Senator Specter!

The Democrats' excuse:

"Reid's spokesman, Jim Manley, explained the change of mind.

"'The more Senator Reid looked into Judge Southwick's qualifications and some of his writings, the more concerned he became.

"'Reid has made it clear that he wants to move as many nominations as possible, but it's obvious Southwick will face strong opposition in the Judiciary Committee,' Manley added."

BUT:

"Specter said...that Leahy had promised that Judiciary Committee Democrats would allow the full Senate to vote on Southwick. Sen. Russ Feingold (D-Wis.) derailed that pledge.

"'Sen. Leahy told me that he was prepared to voice vote Southwick out of committee,' Specter said. 'Feingold raised an objection. In the intervening time, the positions hardened.'

"Leahy could not be reached for comment by press time.

"Feingold said he was 'unaware of any agreement or promise made by Senator Leahy to report the Southwick nomination by voice vote.'

"'It is clear that a majority of the committee opposes the nomination,' he said."

WHAT DID MR. SOUTHWICK DO?

"Southwick has drawn objections from Feingold and other Democrats because he joined two controversial opinions while serving on the Mississippi Court of Appeals.

"In one case, Southwick joined a narrow majority to uphold the reinstatement of a white state employee who had lost his job for using a racial slur. In another, he joined a decision to award custody of an 8-year-old child to her father instead of her bisexual mother. The decision inflamed liberal activists for its pointed use of the word 'homosexual' instead of 'gay.'"

WOW? I understand that "faggot" is generally understood to be derogatory, but "homosexual" too?

The facts:

"Republicans argue that Southwick has an exemplary record. They note that he did not author the two controversial decisions highlighted by Democrats but merely joined the majority's opinion. And they point out that the American Bar Association rated him unanimously well qualified, the highest possible rating."

Joining an opinion in which the word homosexual appears should be disqualifying?

Deciding a father is a better parent than a mother in a particular case is disqualifying?

Deciding that the use of a racial slur is not always a firing offense is disqualifying?

The same extreme political correctness that brought us the Duke Hoax is alive and well in the Senate Democrat caucus.

Wendy Long, counsel for the Judicial Confirmation Network, announced that "[e]very person in the room was very enthusiastic about a fight."

GOOD! It's America's fight!

Edward Whelan, president of the Ethics and Public Policy Center, recently provided this status report on judicial nominations:

"1. Two court of appeals nominees—Peter Keisler (D.C. Circuit) and Leslie Southwick (Fifth Circuit)—have had their hearings but have not yet been voted out of committee. Keisler’s hearing took place nearly a year ago, on August 1, 2006. Southwick’s occurred on May 10, 2007.

"In mid-January 2007....,the Los Angeles Times specifically recommended that Senate Democrats confirm Keisler and, more generally, display a 'cooperative spirit' rather than 'obstructionism' and 'forswear knee-jerk opposition to Bush appointees who are within the legal mainstream.' So much for that advice.

"2. Three court of appeals nominees—Jennifer Walker Elrod (5th Circuit), Raymond M. Kethledge (6th Circuit), and Stephen J. Murphy (6th Circuit)—await their hearings. Elrod was nominated in March 2007. Kethledge and Murphy were first nominated in June 2006, and their nominations were resubmitted in March 2007.

"3. Three court of appeals nominees—Debra Livingston (2nd Circuit), Thomas Hardiman (3rd Circuit), and N. Randy Smith (9th Circuit)—have been confirmed in 2007. All three had originally been nominated in previous years.

"4. Ten court of appeals vacancies still await nominations. Six of these ten vacancies have existed for more than a year (though in three of these cases, I think, the previous nominees withdrew at the end of last year). No nomination, for example, has yet been made for Justice Alito’s Third Circuit seat, which he vacated on January 31, 2006.

"It would be easy to blame the White House for failing to make the nominations, but in at least some (and perhaps all) of these cases the White House’s pre-nomination consultation with senators is encountering severe obstruction."

Mr. Whelan, in "Going South on Southwick? The disgraceful performance of Senate Democrats," deftly destroying the fatuous arguments against Mr. Southwick:

"A big fight is brewing in the United States Senate over President Bush’s nomination of former Mississippi judge Leslie H. Southwick to a seat on the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi). It is a fight that, but for Senate Democrats’ craven kowtowing to the lies of the Left, would never have happened. But if, as now appears inevitable, it does take place, it is a fight that Senate Republicans should relish.

"Let’s begin with the basic facts. Judge Southwick is amply qualified to serve on the Fifth Circuit. Even the American Bar Association’s judicial-evaluations committee unanimously gave him its highest 'well qualified' rating. He served for 11 years as a state appellate judge. He has 20 years of experience in private practice and a decade as an adjunct law professor. And he also served as a senior Justice Department official in the Bush 41 administration.

"Every judicial nominee ought to be treated with decency and fairness. But Southwick particularly deserves a healthy dose of respect, as he is a genuine American hero. He joined the Army Reserve in 1992, when he was 42. In 2003, when he was 53, he volunteered to transfer into a line combat unit of the Mississippi National Guard, a unit that, in the words of its commander, was 'widely known [as] nearly certain to mobilize for overseas duties in the near future.' Indeed, Southwick served on active duty in Iraq from August 2004 to January 2006, returning home just in time for his 56th birthday.

"The Democrats on the Senate Judiciary Committee were already familiar with Southwick and his record, as they late last year unanimously approved President Bush’s nomination of Southwick to a federal district-court seat. (The full Senate failed to act on that nomination.) When Michael B. Wallace withdrew his hotly contested nomination to the Fifth Circuit at the end of 2006 and President Bush nominated Southwick in his stead, there was no reason to expect the nomination to become controversial. In fact, leading Senate Democrats, including majority leader Harry Reid and committee chairman Patrick Leahy, assured their Republican colleagues that Southwick would be confirmed before Memorial Day.

"But then the Left launched its scurrilous attack on Southwick. In early May, the Human Rights Campaign and People for the American Way sent a joint letter to the Senate Judiciary Committee that charged that two opinions that Southwick joined — out of some 7000 in his judicial career — were 'highly disturbing' and 'strongly suggest that Southwick may lack … commitment to social justice progress.'

"In the first case, wildly misrepresented by HRC and PFAW, Southwick joined an en banc majority decision by the Mississippi court of appeals that, under its 'limited scope of review,' affirmed an administrative ruling that an ugly racial slur — the n-word — by a public employee did not justify the sanction of termination of her employment. Far from condoning the racial slur, the opinion that Southwick joined clearly stated that the 'unwarranted use by a state employee of any inflammatory or derogatory term when referring to or directly addressing a co-worker is an action that cannot be justified by any argument.'

"The opinion did reject 'an arbitrary, across-the-board rule' that use of the n-word (or of any other racial epithet) is always 'so inflammatory or disruptive that it warrants the ultimate sanction of loss of employment.' But is that really a rule that the Left would favor? If popular culture is any indication, such a rule would seem likely to have a sharply disparate negative impact on black employees.

"The HRC-PFAW letter claims that the 'ruling that Southwick joined was unanimously reversed by the Supreme Court of Mississippi.” (Emphasis in original.) But, in fact, the majority ruling of the Mississippi supreme court agreed with Southwick’s court that termination was not an appropriate remedy: 'Under the particular circumstances of this case, Bonnie Richmond’s use of a racial slur on a single occasion does not rise to level of creating a hostile work environment, and therefore does not warrant dismissal of her from employment with DHS.' (The Mississippi supreme court somewhat altered the judgment that Southwick’s court had reached, as it remanded the case to the administrative agency 'for the imposition of a lesser penalty, or to make detailed findings on the record why no penalty should be imposed.' The ultimate result on remand was that a written reprimand was placed in the employee’s personnel file and she was reinstated with an award of back wages and benefits.)

"On the basis of this routine administrative-law ruling, HRC and PFAW viciously insinuate that Southwick is a racist.

"In the second case that HRC and PFAW find so alarming, Southwick’s court applied binding Mississippi supreme-court precedent in ruling that it was proper for the lower court to consider a mother’s lesbianism in making a child-custody determination. HRC and PFAW condemn Southwick for joining a majority opinion that uses the 'troubling' terms 'homosexual lifestyle' and 'lesbian lifestyle.' Somehow they overlook the fact that President Clinton used the term 'homosexual lifestyles' in announcing his 'Don’t Ask, Don’t Tell' policy, and that Ruth Bader Ginsburg (among others) joined an opinion (Lawrence v. Texas) that also used the term 'homosexual lifestyle.' I would much prefer that no one use the rather vapid term 'lifestyle' in any context, but the attack on Southwick is clearly a cheap shot. HRC and PFAW also criticize Southwick for joining a concurring opinion in that same case that they tendentiously mischaracterize as 'gratuitously anti-gay.' ...

"There is, in sum, zero substance to the case against Southwick. But the Left’s attack on him caused Democrats to renege on their promise to move his nomination. And in a profile in cowardice, the Democrats on the Judiciary Committee, who know that their allies are besmirching an outstanding man, are now threatening to vote down his nomination.

"Why, given its laughably feeble case, is the Left attacking Southwick? Simply put, because it believes it can defeat him. And because it is confident that stigmatizing Southwick as a backwards bigot will give Senate Democrats all the political cover they need. In other words, what really underlies the Left’s attack is its own appeal to bigotry — to the widespread belief that every white male from the South is presumptively a racist. Is that a charge that Democratic senators from southern states — like Jim Webb from Virginia, Mary Landrieu from Louisiana, and Mark Pryor and Blanche Lincoln from Arkansas — will let prevail?

"Senate Republicans have the ammunition they need to win this fight, either by getting Southwick confirmed or by exposing Senate Democrats as the puppets of the Left. Let’s hope they show the necessary courage."

Let's DEMAND it! (As the defeat of the immigration bill shows, the people can prevail.)

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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