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Controversial Judge Confirmed by Senate

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LAURIE KELLMAN | October 24, 2007 04:41 PM EST | AP

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WASHINGTON — The Senate on Wednesday confirmed Judge Leslie Southwick to the federal appeals court in New Orleans after Republicans overpowered objections by Democrats who said he wasn't sensitive enough to the region's history of race relations.

The 59-38 vote, a rare Republican victory in a Democratic-led Senate, was sealed after the nomination survived its main obstacle, a test tally moments earlier in which a dozen Democrats sided with Republicans to thwart a filibuster. That left Democrats without the power to block Southwick's confirmation, even after a heated debate that raised the pain of civil rights struggles in the 5th Circuit, which serves Mississippi, Louisiana and Texas.

Southwick's record as a state appeals court judge in Mississippi drew opposition from traditionally left-leaning groups who warned Democrats that his confirmation could mean consequences come Election Day.

"We regard this as a test," said District of Columbia Delegate Eleanor Holmes Norton, a member of the Congressional Black Caucus.

"This vote for Leslie Southwick is a vote against the dignity and safety of our families," said Human Rights Campaign President Joe Solmonese.

But supporters of Southwick's nomination said the choice was rightly decided on his qualifications _ not the turbulent history of the 5th Circuit.

President Bush said the confirmation was a victory for the judicial system, and he called for confirmation of other federal court nominees.

"Judge Southwick is a man of character and intelligence who will apply the law fairly. I appreciate the Senate's approval of his nomination," Bush said.

Particularly sweet for Republicans was the pivotal role played by Sen. Dianne Feinstein, D-Calif., who sided with Republicans on the Judiciary Committee and voted to give Southwick an up-or-down vote on the Senate floor. Another bonus for the party out of congressional power: Eight Democrats and one independent joined Feinstein in voting to confirm Southwick.

Democrats who voted for confirmation: Daniel Akaka of Hawaii, Robert Byrd of West Virginia, Kent Conrad and Byron Dorgan of North Dakota, Feinstein, Tim Johnson of South Dakota, Blanche Lincoln and Mark Pryor of Arkansas and Ben Nelson of Nebraska. Sen. Joe Lieberman, I-Conn., also voted yes.

The nomination tested a fragile agreement in the Senate to block Bush's judicial nominations only in "extraordinary" circumstances. Some Democratic opponents said Southwick's writings, combined with the troubled racial history of the circuit, met this amorphous standard.

Not Feinstein. She has said that she believes Southwick is qualified, is not a racist and deserved an up-or-down vote by the full Senate.

Republicans showered her with rhetorical roses after the vote, calling her "the heroine," "the lady of the day" and "a profile in courage." In fact, Sen. Trent Lott, R-Miss., said he would devote a chapter in a future book on leadership to the senator from California.

Some in Feinstein's own party were furious. Rep. Barbara Lee, D-Calif., said she was "incredibly disappointed that a senator from my home state" played such a key role in Southwick's confirmation.

Feinstein, however, wasn't the only Democrat responsible for the confirmation which unfolded in a two-step procedure. The final vote to confirm would not have happened without the initial "yes" votes from Sens. Tom Carper of Delaware, Daniel Inouye of Hawaii and Ken Salazar of Colorado, on the test tally that asked whether to end debate. Support from the three pushed the tally past the 60-vote threshold to advance Southwick to a confirmation vote.

Those three senators then voted against his confirmation.

At issue were two cases in which Southwick was involved as a state appeals court judge in Mississippi. One was a 1998 decision that upheld the reinstatement of a social worker who used a racial slur in reference to a co-worker. Three years later, Southwick joined a ruling against a bisexual mother in a custody case. He also joined what some activists said was an anti-gay concurring opinion.

Southwick's supporters pointed out that those were among 7,000 opinions across the nominee's career and that none of those facts addressed his qualifications. Conservative legal groups began pressuring Democrats from traditionally Republican states to at least give Southwick an up-or-down vote.

Republicans and Democrats have been fighting over this seat on the 5th Circuit for years. Southwick, a law professor, judge and Iraq war veteran, was nominated by Bush in January to fill the slot that has been vacant on the panel since the completion of Judge Charles W. Pickering's recess appointment on Dec. 8, 2004.

Southwick, an adjunct professor at the Mississippi College School of Law, served on the Mississippi Court of Appeals from 1995 until 2006. He previously served as a deputy assistant attorney general with the Justice Department.

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Associated Press writers Chuck Babington and Ben Evans contributed to this story.