Southwick? I don’t think so.

Say it to your Senators.

The usual AGI suspects are all in a lather about the confirmation hearings of Leslie H. Southwick for the Fifth Circuit Court of Appeals. Such very reputable and temperate sources as the Traditional Values Coalition complain that Southwick’s confirmation is being stonewalled by liberal Senators and their “puppetmasters.” Let’s take a look at this nominee.

According to the Alliance for Justice,

Although there are few cases that shed light on Judge Southwick’s views on civil rights, those that do are profoundly troubling. Astonishingly, in one of his exceedingly rare decisions in favor of an employee, he joined the court’s 5-4 opinion in Richmond v. Mississippi Dep’t of Human Services, which upheld an Employee Appeals Board decision to reinstate, with full back pay, a woman who used a racial slur in reference to a coworker, calling her a “good ole n*****.”

Nice. In scrambling to justify this decision, the right wing noise machine must do a bit of creative editing of the record. Southwick wasn’t excusing the employee’s racist verbal abuse of her subordinate, says the ACLJ (the right wing’s corollary to the ACLU), because “[a] judge does not signal his agreement with a person’s conduct by simply holding that the punishment he received for that conduct was excessive.” Problem is, Judge Southwick didn’t hold that the punishment was “excessive;” he held that there should be no punishment at all.

As bad as this is, check out the opinion that Judge Southwick joined in a 2001 custody case involving the biological mother of an eight year old girl who was taken from her because of her relationship with another woman.

According to Mississippi law, the only person with legal custodial rights to an “illegitimate” child is the biological mother of the child. The father in this case didn’t even bother to seek any custodial rights – nor was paternity established – until the child was eight years old. Regardless, the court upheld the decision to award custody to the father. Even worse, Judge Southwick joined a completely gratuitous concurrence, the sole purpose of which seems to be to reiterate Mississippi’s public policy of treating GLBT people as second-class citizens.

In a letter to the Senate Judiciary Committee, HRC points out that

The concurrence does not even refer to gay individuals, but rather focuses on “the practice of homosexuality.” [Ed. note: Sound familiar?] It then cites MississippiÂ’’s law prohibiting same-sex couples from adopting children— – even though this was not an adoption case, but rather a case regarding a biological motherÂ’’s right to retain custody of her child. The opinion even goes so far as to cite the stateÂ’’s sodomy law (subsequently invalidated by the Supreme CourtÂ’s decision in Lawrence v. Texas).

Excerpts from the concurrence (law geeks can read the entire opinion here) follow:

¶ 28. While I do agree with the majority, I write separately because I feel the dissent has delved into an area where our State legislature has made clear its public policy position relating to particular rights of homosexuals in domestic relations settings. In my review of statutory authority, I find that in 2000 the legislature added an amendment to Miss. Code … which reads, “Adoption by couples of the same gender is prohibited” … Another statute which shows the legislature’s intention concerning homosexuals and family relations … reads, “Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.” Additionally, Miss. Code … states, “Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.” That statute has been held to apply to homosexual acts … Looking to these cited authorities and to the United Stated Supreme Court case of Bowers v. Hardwick … which upheld the constitutionality of a Georgia sodomy statute, I find that the legislature has clearly set forth the public policy of our State with regard to the practice of homosexuality…

¶ 32. Even beyond these other states that explicitly forbid same-sex couples from adopting children who do not biologically belong to either person, other states have declined to permit homosexuals from even adopting their partner’s biological child. This practice is often referred to as “second-parent adoptions…”

¶ 33. I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual’s exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State’s policies, in that her rights to custody of her child may be significantly impacted…

…SOUTHWICK, P.J., joins this separate written opinion.

Judge Southwick’s only defense of his choice to join this concurrence (and he is the only member of the majority to have done so) is that he “did not write it.”

In refusing to honor both the public policy of another state and federal law regarding its jurisdiction over a custody case, a judge in Virginia (at the behest of Delegate Bob “Virginia’s Chief Homophobe” Marshall) held that the status of the biological mother trumped all other interests. This is what activist judges do: they cherry-pick whatever legal argument best suits their desired ideological outcome. The Senate needs to grow a spine and Just Say No this time.

Say it to your Senators.