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37–449 PDF 2007

S. HRG. 110–131

CONFIRMATION HEARING ON THE NOMINATIONS

OF LESLIE SOUTHWICK, TO BE CIRCUIT JUDGE

FOR THE FIFTH CIRCUIT; JANET T. NEFF,

TO BE DISTRICT JUDGE FOR THE WESTERN

DISTRICT OF MICHIGAN; AND LIAM O’GRADY,

TO BE DISTRICT JUDGE FOR THE EASTERN

DISTRICT OF VIRGINIA

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 10, 2007

Serial No. J–110–52

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 174

Whitehouse, Sheldon, a U.S. Senator from the State of Rhode Island ............... 1

PRESENTERS 

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting 

Leslie Southwick, Nominee to be Circuit Judge for the Fifth Circuit ............. 3

Levin, Hon. Carl, a U.S. Senator from the State of Michigan presenting 

Janet T. Neff, Nominee to be District Judge for the Western District of 

Michigan ............................................................................................................... 7

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Leslie Southwick, Nominee to be Circuit Judge for the Fifth Circuit ............. 4

Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan presenting 

Janet T. Neff, Nominee to be District Judge for the Western District of 

Michigan ............................................................................................................... 8

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

Liam O’Grady, Nominee to be a U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 5

STATEMENTS OF THE NOMINEES 

Southwick, Leslie, Nominee to be Circuit Judge for the Fifth Circuit ................ 9

Questionnaire .................................................................................................... 10

Neff, Janet T., Nominee to be District Judge for the Western District of 

Michigan ............................................................................................................... 62

Questionnaire .................................................................................................... 63

O’Grady, Liam, Nominee to be District Judge for the Eastern District of 

Virginia ................................................................................................................. 100

Questionnaire .................................................................................................... 101

QUESTIONS AND ANSWERS 

Responses of Leslie H. Southwick to questions submitted by Senators Leahy, 

Kennedy, Durbin, Whitehouse and Feingold ..................................................... 138 

SUBMISSIONS FOR THE RECORD 

Lambda Legal, Kevin M. Cathcart, Executive Director, New York, New York, 

letter ...................................................................................................................... 170

Leadership Conference on Civil Rights, Wade Henderson, President & CEO, 

and Nancy Zirkin, Vice President/Director of Public Policy, Washington, 

D.C., letter ............................................................................................................ 172

Levin, Hon. Carl, a U.S. Senator from the State of Michigan, statement .......... 177

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, statement ....... 179

National Association for the Advancement of Colored People, Mississippi 

State Conference, Derrick Johnson, President, Jackson, Mississippi, letter .. 182

People for the American Way and the Human Rights Campaign, Joe 

Solmonese, President, Human Rights Campaign and Ralph G. Neas, President, People for the American Way, Washington, D.C., joint letter ................ 184

Warner, Hon. John, a U.S. Senator from the State of Virginia, statement ........ 190

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, statement ............. 193

(1)

NOMINATIONS OF LESLIE SOUTHWICK, TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; 

JANET T. NEFF, TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF MICHIGAN; AND LIAM O’GRADY, TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

VIRGINIA 

THURSDAY, MAY 10, 2007

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC 

The Committee met, Pursuant to notice, at 10:16 a.m., in room 

226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, 

presiding. 

Present: Senators Kennedy, Feingold, Durbin, Hatch, Brownback, 

and Coburn. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. The Committee will come to order. 

We have, today, three nominees to the Federal bench who we 

will hear from: Judge Leslie Southwick has been nominated to the 

U.S. Court of Appeals for the Fifth Circuit; Judge Janet Theresa 

Neff has been nominated to the U.S. District Court for the Western 

District of Michigan, and Judge Liam O’Grady has been nominated 

to the U.S. District Court for the Eastern District of Virginia. 

The hearing will proceed as follows: I will deliver brief opening 

remarks, then turn to Senator Hatch, who is the Ranking Member 

for this hearing, to deliver brief opening remarks. Then the nominees will be introduced by their home State Senators in the order 

of seniority. The first two, of course, are Senators Cochran and 

Senator Warner, both of whom are here. 

I would like to welcome each of the nominees, their families and 

friends, to the U.S. Senate; of course, welcome, Senator Cochran 

and Senator Warner. 

As my colleagues know, voting to confirm an individual to the 

Federal bench is one of the most important and lasting decisions 

that a Senator can make. Not only do Federal judges make daily 

decisions about life, liberty and property, not only do they serve as 

an independent check on the executive and legislative branches, 

but they do so with a lifetime appointment in our Federal system. 

In this way, their work is meant to be independent of the ephemVerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC
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eral political disputes, what Alexander Hamilton called ‘‘the ill humors of the political day.’’

Our system of government has had what one observer called ‘‘the 

advantage of relegating questions not only intricate and delicate, 

but peculiarly liable to excite political passions to the cool, dry atmosphere of judicial determination.’’ Maintaining this ‘‘cool, dry atmosphere’’ is an enormous responsibility for judges. 

This hearing is an opportunity, the first and last opportunity, 

really, for Senators and the American people to consider whether 

the nominees are deserving of that responsibility. It is an opportunity to explore their qualifications, their judicial philosophy, their 

judicial temperament, and their commitment to equal justice. 

On the subject of opportunities, I would like to take a moment 

to express my appreciation to our Chairman, Pat Leahy, for giving 

me the opportunity to chair this important hearing. 

I would also like to take a moment and commend his leadership 

in confirming judicial nominations during this Congress. So far this 

year, the Senate has confirmed 17 judicial nominations. To put that 

number in context, it equals the number of judges confirmed during the entire 1996 session of Congress, another time of divided 

government. As the President sends nominees to the Senate for 

confirmation, I am sure that we will consider them as carefully and 

as expeditiously as possible. 

To conclude, I look forward to the opening statements of my colleagues in the Senate and of the nominees, and the answers to our 

questions from each of the nominees. 

I now turn to Ranking Member Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Senator Whitehouse. I appreciate that. 

I want to welcome all of our nominees here today, and of course 

the Senators who are appearing on their behalf. I will be very 

short. I want to congratulate each of you for your nomination to the 

Federal bench. 

I also want to thank Chairman Leahy for scheduling this hearing. Some far-left groups have criticized Chairman Leahy for moving too fast, particularly on Judge Southwick’s nomination. 

Along with Judge Neff, he appeared before this Committee nearly 8 months ago when he was nominated to the District Court. The 

same record is before us now for his nomination to the Fifth Circuit. 

As I understand it, Judge Southwick has provided the Committee 

with nearly 10,000 pages of documents, including both published 

and unpublished opinions. We have had his detailed answers to the 

Committee questionnaire for nearly 3 months, and those are essentially the same as what he provided almost a year ago. So I think 

the criticism of Chairman Leahy’s scheduling of this hearing is offbase, and I want to thank Chairman Leahy for moving it along. 

The position to which Judge Southwick has been nominated is a 

judicial emergency. It needs to be filled. He is an excellent nominee 

who has the highest rating from the American Bar Association, 

unanimously. 

3

I certainly hope that we can proceed with dispatch on all three 

of these judges, if we can, today. Thanks, Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Senator. 

If I may, I will now call on Senator Cochran for his introduction 

of Judge Southwick. 

PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH DISTRICT, BY HON. THAD 

COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much for inviting me to be present today to introduce Judge Leslie Southwick to 

the committee. I am very pleased to have this opportunity to introduce my friend and recommend him for service in the Federal judiciary. 

In my opinion, he should be confirmed to serve on the U.S. Court 

of Appeals for the Fifth Circuit. I have known Leslie for about 30 

years. In my opinion, he is exceptionally well-qualified for this responsibility. It is a very important position in our Federal judiciary, but he has the background, the proven intellectual competence, and a sense of fairness that well equip him for service on 

this important court. 

He graduated cum laude from Rice University in 1972, and then 

went to the University of Texas School of Law, where he graduated 

3 years later. After law school he clerked for the Chief Judge of the 

Texas Court of Criminal Appeals. He then came to Jackson, Mississippi, where I was practicing law, in 1977. 

He joined the firm of Bernini, Grantham, Grauer & Hughes, a 

very well-respected and outstanding law firm in our State, one of 

our most prestigious firms, as a matter of fact. He became widely 

respected immediately as someone who had good judgment, who 

worked hard, who had good common sense. He was a very capable 

lawyer. 

He has since served as a Deputy Assistant Attorney General in 

the Civil Division of the U.S. Department of Justice. He supervised 

about 125 lawyers of the Federal Programs branch. He also supervised the Office of Consumer Litigation. 

In November 1994, Leslie Southwick was elected to serve on the 

newly created Mississippi Court of Appeals. From August of 2004 

to January of 2006, he served as the Staff Judge Advocate for the 

155th Brigade Combat Team in Iraq. 

I recall communicating with him during his time when that unit 

was deployed as part of our military force in Iraq. They were mobilized in support of Operation Iraqi Freedom. He was out in the 

desert with the troops and providing leadership and advice on legal 

matters to the brigade. 

He is currently serving as a Professor of Law at Mississippi College School of Law. He teaches courses in administrative law, consumer law, evidence, statutory interpretation, and judicial history. 

He has also served as an instructor at the U.S. military academy 

at West Point. 

He has written several legal and historical articles and publications for the Mississippi Law Journal, the Mississippi College Law 

Review, and others. He is the author of a book, Presidential AlsoVerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC
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Rans and Running Mates, which won an American Library Association ‘‘Best Reference Work of the Year’’ award in 1985. 

As you can see from his accomplishments and his experience, 

Leslie Southwick has had a distinguished career as a public servant and as a private lawyer in one of the best law firms in our 

State. 

He is respected for his honesty and integrity, his pleasing personality, and I am confident he will reflect great credit on the Federal judiciary if he is confirmed by the Senate to serve on the Fifth 

Circuit Court of Appeals. 

Thank you. 

Senator WHITEHOUSE. Thank you, Senator Cochran. 

The next Senator I will call then, going by order of seniority, is 

Senator Warner of Virginia, to speak on behalf of Magistrate Judge 

O’Grady. 

Senator WARNER. Thank you, Mr. Chairman. Might I suggest 

that my distinguished Leader, Mr. Lott, please go ahead. 

Senator WHITEHOUSE. Senator Lott, please proceed. 

PRESENTATION OF LESLIE SOUTHWICK, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH DISTRICT, BY HON. TRENT 

LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator LOTT. Well, let me just say to my two more senior colleagues, I appreciate this. But since we are on Judge Southwick, 

maybe it would make some good sense to have us both make our 

comments and then yield to our other colleagues. Thank you, Senator Warner and Senator Levin. 

Thank you very much, Senator Whitehouse, for being here and 

chairing this subcommittee. Thank you, Senator Hatch, for doing 

your diligent duty, as always. I do want to extend my appreciation 

to Chairman Leahy for going forward with this hearing and arranging for Senator Whitehouse to chair it, and to Senator Reid for 

his work with Senator McConnell to see that we move forward in 

a fair process with regard to these nominees. 

It is not an easy task. It is an important task. I think, obviously, 

quality is every bit as important—maybe more so—than quantity. 

I will not repeat what my senior colleague has said in his comments here this morning in support of Judge Leslie Southwick. He 

obviously has an outstanding record. I was just writing down here 

what an outstanding life he has had. He is well-educated. He was 

an outstanding student, graduating cum laude from Rice University, an outstanding university in Texas, the Texas Law School. 

He clerked in two different, very important courts, for the presiding judge of the Texas Court of Criminal Appeals, and he moved 

to Mississippi and clerked for one of the most outstanding people 

I have ever known in my life, let alone the fact that he was the 

chief judge of the Fifth Circuit Court of Appeals, Charles Clark 

from Mississippi. So he has been an outstanding student, he has 

had outstanding experience as a clerk for very fine judges in critical positions. 

He has a distinguished military career, having taken leave from 

the Court of Appeals to go to Iraq, as Senator Cochran just pointed 

out, as a Judge Advocate for the 155th infantry unit out of Mississippi. 

5

He is an author and has been recognized for that. He is a law 

school professor. He has been affiliated with one of the very best 

law firms in the State. But I think, most importantly of all, he himself has served as a judge, an appellate court judge, in Mississippi, 

where he has participated in deciding over 7,000 cases and he authored the most opinions in 8 of his 10 years on the appellate 

court. 

He received the ‘‘Judicial Excellence’’ award from the Mississippi 

State Bar Association. He has been broadly and widely acclaimed 

as an excellent choice to serve on the Federal judiciary, including 

by the local newspaper, the paper in our State’s capital, the Clarion 

Legend, a Gannett newspaper, not known for just endorsing any 

Republican nominations for anything. 

But they had this to say about Judge Southwick: ‘‘...is an outstanding nomination for the bench, with no hint of any reason for 

disqualification. The U.S. Senate should confirm the nomination.’’

He has one other distinction here. He probably is getting close 

to having a record for how long he has been pending before this 

Senate for a Federal judicial appointment, first the Southern District, but then was moved up and recommended for the Fifth Circuit Court of Appeals. 

I, like Senator Cochran, have known him for a long time personally. I have nothing but the highest admiration. He has everything 

you are looking for here in terms of education, history of public 

service, reputation for fairness, and stellar judicial temperament. I 

urge the Subcommittee to expeditiously move forward on this nomination of Judge Leslie Southwick. 

Thank you very much, Mr. Chairman, and my colleagues. 

Senator WHITEHOUSE. Thank you, Senator Lott. 

We will now return to the regular order of seniority. I call on 

Senator Warner to speak on behalf of Magistrate Judge O’Grady. 

PRESENTATION OF LIAM O’GRADY, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON. 

JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman. May I say to you 

that we have had some connection and knowledge with each other 

for many, many years, and I am very impressed with your ability 

to take strong reigns and grasp the responsibilities of chairing a 

Committee of the U.S. Senate in such a short time after your election to this august body. 

Senator WHITEHOUSE. Thank you, sir. 

Senator WARNER. I wish you well. 

Senator WHITEHOUSE. Thank you, sir. 

Senator WARNER. And I thank the Chairman who sent you, Patrick Leahy, whose friendship and work I have shared in my 29 

years with my colleague—and indeed mentor—who is not listening 

to me, Senator Hatch. He fostered my career from the very beginning in the U.S. Senate. Thank you, both of you, for coming here 

today and having this hearing. 

Mr. Chairman, Senator Hatch, other members of the committee, 

I would like to read from the opening paragraph of a statement 

6

and endorsement by my colleague, Jim Webb, who is unable to be 

here this morning. 

He states as follows: ‘‘Today it is my distinct pleasure to offer my 

support, along with my colleague Senator Warner, for the nomination of Magistrate Judge O’Grady to be a judge on the U.S. District 

Court for the Eastern District of Virginia.’’

I ask unanimous consent that his statement follow my statement 

in the record of today’s proceedings. 

Senator WHITEHOUSE. Without objection, that will be done. 

[The prepared statement of Senator Webb appears as a submission for the record.] 

Senator WARNER. And at this time, Mr. Chairman, I would ask 

the Chair to invite Magistrate O’Grady to introduce his wife and 

children. 

Judge O’Grady. Thank you, Senator. This is my wife, Grace 

McPherson O’Grady, who is no stranger to these proceedings. She 

worked for Senator Hecklin after college, and then Senator Nunn 

on the Permanent Subcommittee on Investigations after getting a 

graduate degree. With us also are my two youngest children: 

Wynn, who is nine, and Tatum, who is five. Thank you, Senator. 

Senator WARNER. Well, we welcome Wynn and Tatum to the proceedings. Mrs. O’Grady, it is good to have you back under such 

happy circumstances. 

Thank you, Mr. Chairman. I would ask unanimous consent that 

my full statement be made a part of the record. 

Senator WHITEHOUSE. Without objection. 

[The prepared statement of Senator Warner appears as a submission for the record.] 

Senator WARNER. I should like to draw to the attention of the 

members of the Committee certain aspects of this. 

Mr. Chairman, there is an old saying in the Senate, some Senators are proud to point that they came up through the chairs to 

become a U.S. Senator, meaning that they served in the State legislatures of their respective States, they often came from there either to the Governorship or, indeed, the House of Representatives, 

and finally to the U.S. Senate. 

Well, this outstanding nominee by our President has really come 

up through the chairs of the legal profession. Judge O’Grady, who 

has been nominated to fill this seat, has been a member of the Virginia Bar since 1978. 

He has worked as a sole practitioner, as an Assistant Commonwealth Attorney, as an Assistant U.S. Attorney, as a partner in an 

international law firm, and for the last 4 years he’s worked with 

the Eastern District of Virginia as a magistrate judge. 

In his career, he has had a wide array of experience. As a sole 

practitioner, he worked as a court-appointed criminal defense lawyer. As an Assistant Commonwealth Attorney, he tried upwards of 

100 jury trials. As an Assistant U.S. Attorney, he focused on narcotics and organized crime cases. 

As a partner in the well-known law firm that he was associated 

with, he worked extensively on patent and trademark cases, and 

for the last 4 years as a magistrate judge, of course, he had a full 

spectrum of so many of the responsibilities on that court. 

7

Equally impressive, though, despite the rigors of his career, he 

has always found time to give back to the community. He has 

helped teach law at both George Washington University here in the 

Nation’s capital, and George Mason in Northern Virginia. While at 

the firm, he set up a pro bono legal clinic and took court-appointed 

cases involving those in need. Most recently, he has been a dedicated volunteer youth soccer and youth hockey coach. 

Together with his family, I think they are exemplary persons for 

continuing in public service. He has the skills and qualifications, 

in my judgment, to become a U.S. District Court judge. I do hope 

that this Committee will see fit to confirm him. 

I thank the Chair and the Ranking Member. 

Senator WHITEHOUSE. Thank you, Senator Warner. 

We will now proceed to hear from Senator Levin, who is here to 

speak on behalf of Judge Janet Theresa Neff. 

PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN, BY HON. 

CARL LEVIN, A U.S. SENATOR FROM THE STATE OF MICHIGAN 

Senator LEVIN. Mr. Chairman, forgive me for that pause. Thank 

you so much, Chairman Whitehouse, members of the committee, 

for holding this hearing today on Janet Neff. 

I am here with Senator Stabenow and am pleased to support all 

three Michigan nominees that are pending before this Committee 

for the Western District of Michigan: Robert Yonker, Paul Maloney, 

and Janet Neff. 

They have been nominated by the President to the Western District. We worked with the White House on these nominations. They 

received a hearing last year. They were unanimously reported out 

of the Committee last year. 

Unfortunately, the nominations were held up at the last session 

of the last Congress, so they were not confirmed. I hope very, very 

fervently that the three nominees will be approved by this Committee and that they will be promptly confirmed by the Senate. 

A hearing on one of the nominees, Janet Neff, is being held 

today. I want to welcome her and her family to the hearing. 

She graduated with honors from the University of Pittsburgh in 

1967, then from Wayne State University Law School in 1970. She 

has had a distinguished legal career. After law school, Judge Neff 

served as an estate and gift tax examiner for the Internal Revenue 

Service, and then a research attorney for the Michigan Court of 

Appeals before becoming an Assistant City Attorney for the city of 

Grand Rapids. 

Judge Neff has also worked in private practice. She served as a 

Commissioner for the Michigan Supreme Court, and then as an Assistant U.S. Attorney. Judge Neff currently serves on the Michigan 

Court of Appeals, and she has been granted numerous awards and 

honors, including ‘‘Outstanding Member for 2006’’ of the Women 

Lawyer’s Association of Michigan. 

Her hallmarks on the Court of Appeals in Michigan have been 

integrity, decency and hard work. We are fortunate to have Judge 

Neff devoted to public service. I hope we can all work together to 

8

move all three of these Western District Court nominees promptly 

through the Senate. 

I will keep this statement briefer than perhaps I would ordinarily do because of the lengthier statement which I made when 

her first hearing occurred. But I just want to assure this Committee of her qualifications, both legally and of character, her objectivity, her fairness, her open-mindedness on the bench. 

She has strong support in her community, both the legal community and the broader community. She is extraordinarily well-qualified to be a District Court judge, and I commend her highly to this 

committee. 

Senator WHITEHOUSE. Thank you, Senator Levin. 

Senator Stabenow, would you like to add your statement now? 

Senator STABENOW. I would. 

Senator WHITEHOUSE. Please proceed. 

PRESENTATION OF JANET T. NEFF, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN, BY HON. 

DEBBIE STABENOW, A U.S. SENATOR FROM THE STATE OF 

MICHIGAN 

Senator STABENOW. Thank you so much, Mr. Chairman, for holding this hearing, and distinguished members of the committee. 

This is a wonderful opportunity for us to once again speak of 

strong support for Judge Janet Neff, as well as, as Senator Levin 

said, for the other two nominees for the Western District. All three 

of the nominees are supported by both of us, and we are very 

pleased that they were reported unanimously last year from the 

committee. 

This is, in fact, as you know, the second hearing for Judge Neff. 

I wonder if I might as well, seeing Judge Neff and her family here, 

just take a moment and give her the opportunity to introduce her 

family, who I know she is very proud of as well. 

Senator WHITEHOUSE. Please. We would be delighted for that to 

happen. 

Judge NEFF. Thank you, Senator. This is my husband of 35 

years, David Neff, and our daughter, Genevieve Dorment, who has 

just finished her second year of law school at Fordham University 

in New York City. 

Senator WHITEHOUSE. Well, congratulations, and welcome to the 

Committee on this happy occasion. 

Senator STABENOW. In addition to all of the qualifications that 

Senator Levin has spoken about and I have been pleased to join in 

speaking about at the first hearing, Mr. Chairman, I want to stress 

today that it is very important that the Committee move quickly 

to confirm Judge Neff, as well as the other two nominees. Currently, the Western District has only one full-time judge hearing 

cases and the Judicial Conference has declared it a judicial emergency. 

Even when the bench is full, this district represents logistical 

challenges because it covers communities all over Michigan, from 

the upper peninsula, if you are familiar with Michigan, all the way 

down to Benton Harbor and St. Joseph. 

9

So, it is a very large area and it is extremely challenging right 

now, which is the reason we have been working hard with the 

White House, together, to get these vacancies filled. 

However, I am very pleased that her confirmation process is continuing and I hope that she will be confirmed before the Memorial 

Day recess, again, along with the other two pending nominations 

for the U.S. District Court for the Western District of Michigan. 

These nominees all bring very distinguished legal careers to the 

Federal bench. Judge Neff has served as a judge on the Court of 

Appeals for the Third District of Michigan for almost 17 years. I 

cannot stress enough, Mr. Chairman, how much she is respected, 

not only for her legal mind, her balance and objectivity, but for her 

personal integrity. 

In addition to her distinguished career on the bench, Judge Neff 

has been an active leader in Grand Rapids, Michigan, including 

serving as the first woman president of the Grand Rapids Bar Association. 

So, I commend her to you and ask that the Committee move as 

quickly as possible to allow us to fill all three vacancies in the 

Western District. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Stabenow. 

I have a statement from Chairman Leahy that I will add to the 

record. He has asked me to add it to the record of this proceeding. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator WHITEHOUSE. If there is no further business, we will 

proceed to the nominees. Thank you, Senator Levin and Senator 

Stabenow. 

Senator LEVIN. Thank you. 

Senator WHITEHOUSE. May I call Judge Leslie Southwick forward 

to be sworn, please? 

[Whereupon, the witness was duly sworn.] 

Senator WHITEHOUSE. Please be seated. 

Judge SOUTHWICK. Thank you. 

Senator WHITEHOUSE. Do you have a statement or opening remarks you would care to present to us? 

Judge SOUTHWICK. I have a very important opening statement. 

Senator WHITEHOUSE. Please. 

STATEMENT OF LESLIE SOUTHWICK, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Judge SOUTHWICK. Which is to introduce my wife, who has joined 

me for this hearing today, Sharon Southwick. Would you mind 

standing? Sharon and I have two children. Our son, Phillip, who 

is married, his wife, Mary, living in Austin. Our daughter Cathy 

is grown as well, living in Houston. They could not join us today, 

but I think in spirit they are here as well. Thank you, Mr. Chairman. 

[The biographical information of Judge Southwick follows:]

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Judge SOUTHWICK. I will ask for clarification. You are chairing 

today. Should I refer to you in that way? 

Senator WHITEHOUSE. You know, this is my first go at it, so I’m 

not entirely sure. But let’s give it a try. 

Judge SOUTHWICK. I certainly shall. 

Senator WHITEHOUSE. Very good. Well, you come to us with some 

impressive qualifications: as the Deputy Assistant Attorney General of the United States, as a member of the Mississippi Court of 

Appeals, and as an individual who has been unanimously ranked 

as ‘‘Well Qualified’’ by the American Bar Association. So, I congratulate you on the career that has brought you to this point. 

If I may proceed with a few questions. In this building we spend 

quite a lot of time thinking about the political dynamics of the 

country. As I indicated in my opening statement, I’m a deep believer in the phrase that James Bryce used in his wonderful book 

about our country, The American Commonwealth, in which he 

pointed out that the particularly passionate fights of the day are, 

in many cases, transferred to what he described as the ‘‘cool, dry 

atmosphere of judicial determination.’’ It is a vital part of our country’s political structure that determinations, particularly where 

passions run high, continue to be made in that cool, dry atmosphere. 

We are, of course, involved in many, many discussions about how 

the separation of powers principle plays itself out, concerns about 

the unitary executive and the effects, if any, of signing statements 

on laws. 

I would like to hear your views on the role of separation of powers in our country’s political structure, the importance of it, the judiciary’s role in it, and how you would make decisions as a judge 

on the Circuit Court of Appeals. 

Judge SOUTHWICK. Certainly. Mr. Chairman, I am interested in 

separation of powers in the need of judges to stay within their 

‘‘lane’’—maybe that is a military term—within their role. The three 

branches of government—I am not telling anything new here—each 

are assigned a State level. I was assigned, and if fortunate enough 

to be on the Fifth Circuit, would be assigned, a limited role. 

I am concerned about staying within the boundaries assigned to 

me on the State Court of Appeals. I was conscious of that, dealt 

with issues dealing with the proper role of the legislature—Congress, here, certainly—what is their obligation, what is their area 

of responsibility, to what extent do their statutes control what we 

are doing, to what extent is the independent judicial function involved? 

So, I believe separation of powers if vital. It’s part of how this 

country is structured, how this country’s government has been organized. That premise applies at the State level, and I’ve tried to 

apply it, and certainly will be conscious of it if fortunate enough 

to serve on the Fifth Circuit. 

Senator WHITEHOUSE. There has been some controversy about a 

decision that you did not author, but signed onto, both in the main 

opinion and the concurring opinion, S.B. v. L.W. that involved a 

woman who was gay and who was seeking custody of her daughter. 

Because that has been a matter of some controversy, I looked at 

the decision myself. 

46

The thing that struck me about it, was that it used a particular 

phrase. It used the phrase: ‘‘homosexual lifestyle’’. For those engaged in political debate, my experience is that that particular 

phrase—it’s not exactly at the level of fighting words, but it’s a defining term in the political combat of the debate over the rights of 

gay people in America. It is a term that is highly associated with 

a particular point of view that is not particularly favorable to gay 

rights. 

It would be, in my estimation, a little bit like, if for some reason 

the question of the Iraq conflict came up and a judge were deciding 

a matter related to it and used the phrase ‘‘cut-and-run’’, which has 

become a charged political piece of terminology. 

Again, I know you did not write those opinions, but in the context of a country in which everybody is entitled to equal justice before the law, how do you feel about the use of a term like that that 

is charged on one side of the debate? 

A gay person coming before a judge who uses that term on a regular basis to describe their sexual orientation would, I think, reasonably conclude that the judge had pretty strong opinions on that 

subject that were adverse to that individual, and it seems like it 

is unnecessary terminology to use, not really judicial terminology. 

I am interested, going forward. Again, you did not write that 

opinion, but I would ask you to react to those thoughts because I 

think it is important that we all understand that you are a person 

who will give everybody a completely fair shake and see things 

right down the middle, particularly in this country of ours where 

we encourage people of all different persuasions to be active in our 

political and civic life. 

Judge SOUTHWICK. Thank you, Senator. That is an important 

question and I appreciate your pointing out several times, I was 

not the author. Obviously, I did join the opinion. 

As you discussed, that opinion dealt with child custody. The trial 

court had decided that the father, as opposed to the mother, was 

entitled to custody. Among the factors that are required to be considered under Mississippi controlling precedent is the moral—morality—moral issues that may arise as to both parents. 

And at that time, 2001, I believe is the date of the opinion, Bowers v. Hardwick was still the law of the land. I think it was cited, 

at least in the concurrence, perhaps in the majority opinion. Lawrence v. Texas, 4 years ago, perhaps. 

Both the concurring opinion and the majority discussed case law 

and the concurring opinion statutes that state the policy—public 

policy in Mississippi at that time regarding homosexuality. That 

was relevant to the decisionmaking on whether the trial judge had 

abused his discretion in deciding which parent ought to get custody 

of that child. 

You have asked more generally, sir, about the need to treat all 

people that come before the court with respect. I’m paraphrasing, 

but I take that to be what you’ve asked. 

Senator WHITEHOUSE. A fair paraphrase. 

Judge SOUTHWICK. Thank you. And I feel that’s vital. Senator 

Lott was kind enough to mention an award that I received 3 years 

ago from the State Bar as the person who received the ‘‘Judicial 

Excellence’’ award that year. 

47

One of the reasons that was said, of course, I was a judge, and 

things are said about judges by lawyers that maybe have to be 

taken with a grain of salt but I hope they meant this, that among 

the reasons I was commended that year was for the sense that I 

was fair to all who came before me, in oral arguments, in the writing of my opinions. 

And that’s what I tell my clerks, that’s what I tell my staff. 

Whatever we do with a case, however we write it, we treat each 

person, a criminal defendant, maybe one of the least appealing—

not trying—it depends on the defendant—but the least disfavored 

that comes before us. Treat those people with respect, all the participants in the case. 

So I would not have used that phrase. I did join it. I thought her 

opinion—Judge Payne—both the concurring opinion—it was useful 

that she added the legislature’s view on the issue. The majority 

had just talked about what courts had said about the issue. But in 

2001, before Lawrence v. Texas, that was the law of Mississippi. 

Where it is today would have to be decided today. 

Senator WHITEHOUSE. Senator Hatch? 

Senator HATCH. Well, thank you. 

Judge, is your microphone on? 

Judge SOUTHWICK. Well, if you tell me it’s not, I bet you’re right. 

Senator HATCH. No, I think it is. 

Judge SOUTHWICK. Maybe I’m not speaking loudly enough. 

Senator HATCH. I think it is. I just wanted to double check. 

Well, first, let me thank you for your service to our country and 

to your community. You took a military leave of absence from your 

service on the Mississippi Court of Appeals to serve in Iraq as a 

Judge Advocate for the 155th Brigade combat team of the Mississippi National Guard, and you volunteered for Habitat for Humanity, a fine organization, doing the Lord’s work for nearly 15 

years, and I want to thank you for that service as well. 

Now, Judge, it’s my understanding, in nearly a dozen years on 

the Mississippi Court of Appeals, that you participated in more 

than 7,000 cases. Is that correct? 

Judge SOUTHWICK. That is an estimate I made, sir. I did not go 

back to the court to see exactly. 

Senator HATCH. Approximately. 

Judge SOUTHWICK. But approximately. 

Senator HATCH. And you authored upwards of approximately 

1,000 opinions. 

Judge SOUTHWICK. Total, including my separate opinions. Probably for the court, an average of 80 a year, 800. I was off the court 

for a year and a half, so—I can’t do the math too well in my head, 

but using 10 years, about 800, 850 opinions for the court. 

Senator HATCH. Well, the American Bar Association, which does 

the most exhaustive examination of judicial nominees, their record 

and their temperament, looked at everything and unanimously concluded that you deserved the highest rating of ‘‘Well Qualified’’, 

and it was unanimous. 

The ABA says that this conclusion means that you have qualities 

such as, and I’m quoting here from their published criteria, ‘‘compassion, open-mindedness, freedom from bias, and commitment to 

equal justice under law.’’

48

Now, no one has ever, to my knowledge, accused the ABA of having a conservative bias. So when the most exhaustive evaluation of 

your record shows that you are open-minded, free from bias, and 

committed to equal justice, I am baffled by some of the more farleft groups who look at just a few cases and consider only the result of those few cases, and then pronounce that you are controversial and your record is troubling, or that you favor certain interests 

over others. 

Now, that conclusion, in my opinion, has no credibility because 

the approach leading to that conclusion is illegitimate. You’ve had 

a dozen years of experience as a member of the Court of Appeals, 

as an appeals court judge. 

Did you decide cases based on the identity of the parties or the 

political interests at stake, or did you apply the law to the facts, 

no matter which side would come out the winner? 

Judge SOUTHWICK. Senator, I did my best to treat each case impartially without regard for the characteristics that you stated. 

Senator HATCH. Now, Senator Whitehouse brought up the particular case of S.B. v. L.W., which was a domestic relations case, 

as I recall. 

Judge SOUTHWICK. Child custody, domestic relations. 

Senator HATCH. OK. Now, your court decided that the trial judge 

was not manifestly wrong to award custody based on the factors 

outlined by the Mississippi Supreme Court, including a sexual relationship outside of marriage. 

Now, you joined a concurrence which further discussed the public 

policy in the area, as reflected in State legislation at the time. And 

certain political groups might not like the result in the case, but 

they suggest that judges should disregard the law and decide cases 

so that certain parties or certain political interests prevail or win. 

Now, as I understand it, this issue of homosexuality was only one 

of the issues in deciding this case. 

Judge SOUTHWICK. Yes, Senator. I believe there were 5 factors, 

as I recall, in the trial judge’s opinion, 5 out of the 10 that ought 

to be applied, that the trial judge determined/weighed in favor of 

the father getting custody. The moral issue was one of them, which 

was the rule in Mississippi at that time, and remains, that the morality of each party should be considered. 

Senator HATCH. To which you were bound. 

Judge SOUTHWICK. Say again, sir? 

Senator HATCH. To which you were bound. 

Judge SOUTHWICK. I was bound. I was bound. And I think to 

some extent what Senator Whitehouse was saying on separation of 

powers, the legislature had spoken to this as well and that was the 

policy they had announced, on adoption, on marriage, and the 

criminal statute, as was mentioned. 

Senator HATCH. Do you have any prejudice against gay people? 

Judge SOUTHWICK. I do not, sir. 

Senator HATCH. Some of your critics looked at just two of your 

decisions and decided that you, in their words, ‘‘may lack the commitment to social justice progress to which Americans are entitled 

from those seeking a lifetime appointment to the Federal bench.’’

49

Is that how you see your role as an Appeals Court judge? Are you 

there to bring about social justice, or social justice progress, or are 

you there to decide cases based on the law? 

Judge SOUTHWICK. I am there to provide justice, as measured by 

a reasonable interpretation and depth, hardworking gathering of 

the facts on the record, applying it fairly to the law that applies 

in that particular area. 

That, I think, is the definition of justice for an appellate judge, 

is to understand the facts, work hard to understand the law—understanding both, work hard at that, and come up with your conclusion that results from that. That’s—the symbolism is sort of 

mixed about ‘‘Blind Justice’’ holding the scales with a blindfold on. 

But I think, for this purpose, that is correct, that who is before 

you, the outcome does not drive the analysis, the analysis of the 

facts and the law leads to an outcome. 

Senator HATCH. OK. 

Now, let me ask you about another case, Richmond v. Mississippi

Department of Human Services. This is one of the two cases that 

have been used by some of the groups to say that all of your experience, all of your high rating by the ABA and high acclaim from almost everybody who knows you is irrelevant. 

In this case, a social worker was fired for using a racial slur at 

a work-related conference. Now, you joined the majority of the 

State Appeals Court, which upheld the State Employee Appeals 

Court decision that she was wrongfully terminated. 

Now, I have two questions about this case. Let me ask the first 

one. First, what was the role of your court, the Court of Appeals, 

in this case? In other words, what standard of review did you have 

to apply? 

Judge SOUTHWICK. OK. To explain that role I think I need to explain the role of the agency you just mentioned. The Department 

of Human Services, I believe, was her employer, determined that 

she needed to be terminated. 

Senator HATCH. Let me ask that part of the question, too, and 

that will be my second point. 

Judge SOUTHWICK. Oh. 

Senator HATCH. Even though the Mississippi Supreme Court reversed for another reason, didn’t the court agree with you that this 

employee was wrongfully terminated? 

Judge SOUTHWICK. Correct. Both courts, applying the standard of 

review of an administrative agency, which is to look for substantial 

evidence to support the decision reached by that agency to see if 

they were arbitrary and capricious, there are also constitutional 

and statutory violation review standards that did not apply here. 

The Employee Appeals Board looked at this issue and they are 

to determine—to make consistent the employment decisions made 

throughout Mississippi government agencies. And they looked at 

what was determined at this particular employing agency and decided there was not enough to terminate the employee for that. 

There were factors that they looked at, evidence that they relied 

on regarding the effect of that slur, the mind-set, whatever. But 

the Employee Appeals Board had that role. Our role on the Appellate Court was to decide, was that within—was there evidence to 

50

support that—was it arbitrary and capricious? The court I was on, 

the majority said we could sustain that decision. 

The Supreme Court said, yes, the decision not to terminate—

overturning the decision to terminate could be sustained, but we 

remanded it to the agency for further review to see if an intermediate punishment of some sort would be appropriate. 

They did not think they applied the standards that the Employee 

Appeals Board—statutory standards—were supposed to apply quite 

correctly and wanted further findings before they would sustain not 

giving any punishment at all, is my understanding now of what the 

Supreme Court did. 

Senator HATCH. OK. 

Now, some far-left groups have criticized you in the case that we 

just discussed because the State Supreme Court reversed it, and 

then they turn around and they attack you for another case, 

Dubard v. Biloxi, in which the State Supreme Court agreed with 

you. Once again, I think an illegitimate approach leads to the 

wrong conclusion. 

In the Dubard case, you dissented from your court’s decision to 

allow an employment suit to go forward, even though the employment relationship is what we call ‘‘at will’’. What was the basis for 

your dissent, and is it true that the Mississippi Supreme Court 

unanimously reversed and vindicated your legal conclusion? 

Judge SOUTHWICK. So I don’t forget, I will answer that last part. 

Yes, they did unanimously reverse. Employment at will has been 

the doctrine in Mississippi for non-contract, non-union, no other 

governing principle employment in Mississippi for over 100 years. 

Under employment at will, there is a right to leave a job at any 

time, which is less significant for the employee, and a right for an 

employer to fire at any time. It is said to be a balance; whether 

it is or not, that is the policy behind it, as I understand it. 

This individual was terminated after being given a job offer. The 

job offer was withdrawn before the person started. The court was 

relatively new at the time. 1999, I believe, is the date of that opinion. The majority in the court, I thought, had taken a position totally contrary to many years of settled jurisprudence about how 

employment at will worked. 

I wrote a dissent and tried to explain it, as how employment at 

will worked. I have been wrong at times and they have had to explain to me. This time, the Supreme Court agreed with me, which 

was nice. I will admit here, they have not always agreed with me. 

It could be, when they reversed me, they were incorrect. It could 

also, unfortunately, be that when they affirmed me, they were incorrect. So, I never know what to make of that. 

But, nonetheless, the Supreme Court did agree that employment 

at will did not acknowledge any cause of action for this plaintiff, 

so I was applying what I thought was established law. 

One thing I would say about the Dubard opinion, though. As part 

of my analysis after describing the balance and acknowledging the 

balance of the right of employee and the right of employer may not 

exactly be equal, I then said that this was reasonable, or may have 

even said that this was the best approach for the usual non-contract, non-union kind of situation. 

51

That was stating a policy position which, in hindsight at years 

later, I probably should not have done. Policy should not be put 

into an opinion. Personal opinion should not be put into an opinion. 

But, nonetheless, I was vindicated, to use your word, I believe, 

sir, by the Supreme Court unanimously in a fairly short opinion. 

There really—that time I was right. There really wasn’t much, I 

think, to dispute what my dissent said, but I may have added a 

sentence that I now wish I had not. 

Senator HATCH. Well, thanks, Mr. Chairman. My time is up. 

Senator WHITEHOUSE. Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

And welcome, Judge Southwick. 

Judge SOUTHWICK. Thank you. 

Senator FEINGOLD. What, in your view, does joining a concurrence or dissent written by another judge signify? 

Judge SOUTHWICK. If I may, I don’t want to pull my answer, but 

if I could explain, because it will elaborate on how I answer. Our 

court is the only appeals court in the State. The court I was on. 

I’m not saying I’m still on it. I left December 31st. 

All cases, appeals from trial courts, initially go to the Supreme 

Court, and they decide which cases to keep and which to send to 

the State Court of Appeals. The term of art is ‘‘deflective’’. We’re 

a 10-judge court, but we hear cases initially as 3-judge panels. 

Those are the only judges that get all the briefs, those are the only 

judges that get the record. 

Once the three-judge panel makes a decision, unanimous or otherwise, those opinions, or opinion, go to the full court. So I will say 

there’s a distinction in answering your question whether I’m on the 

original panel or whether I’m on the full court, because I will have 

a lot more information if I was on the original panel. 

Senator FEINGOLD. But you have the option of writing your own 

dissent or concurrence if you don’t agree with the reasoning or the 

language used by the judge who’s writing the opinion for the court, 

isn’t that correct? 

Judge SOUTHWICK. If I’m one of the seven judges who was not 

on the panel, I am entitled to write a separate opinion when it goes 

to the full court, just as I would be if I were on the original panel 

and a majority of the panel, two other judges, didn’t agree with my 

position. 

If I join in the opinion, it at least means I agree with the outcome. If I join in the opinion I may have worked with the writing 

judge to alter language, and I often do, to get back to Chairman 

Whitehouse’s case he was talking about earlier and the language 

in the child custody case. 

Would language like that or language I found was inappropriate—would I go to a judge and talk to him about it? I should. 

Often I would. I don’t recall that phrase right now from when it 

circulated in 2001 and what my initial reaction to it was. 

Senator FEINGOLD. But as a general matter, obviously—

Judge SOUTHWICK. But as a general matter—

Senator FEINGOLD.—you have the option to write your own concurring opinion if you don’t agree with the language or the reasoning of the majority opinion. Is that correct? 

Judge SOUTHWICK. Absolutely. 

52

Senator FEINGOLD. All right. 

Let me ask you a bit about this same case that Senator Hatch 

was talking about, the Richmond case. One thing I’m troubled by, 

is that your court accepted, pretty much without comment, the conclusion of the hearing officer in the Employee Appeals Board that 

the employee’s use of the racially offense term was, in the court’s 

words, ‘‘not motivated by racial hatred or animosity’’. But the dissent gives a much more complete rendition of what the hearing officer said, and it’s very troubling. 

The hearing officer said, for example, that the offensive term ‘‘is 

somewhat derogatory, but the term has not been used in recent 

years in the conversation that it was used in my youth, and at that 

point at that time it was a derogatory remark. I think that in this 

context, I just don’t find it was racial discrimination.’’ Now, to me, 

that’s a pretty shocking bit of analysis. 

And I just wonder—and I know you were trying to address this 

a minute ago and I want to get back to it. I just wonder whether 

it crossed your mind, as an appellate judge, that the judgment of 

this particular trier of fact might not be the best to rely on. 

Judge SOUTHWICK. I do not—and I don’t think you’re asking me 

this. I cannot recall exactly what went through my mind at that 

time, but looking at it now, as you ask me about it now, it would 

seem to me that we are always looking at whether the analysis 

done by whoever the fact finder is we are entitled or obligated to 

give deference to, whether it is arbitrary or capricious, if it’s an administrative agency. 

That particular analysis that you read does not sound convincing 

to me as the best way to explain why this would not have had an 

adverse impact on the workplace, or whatever the other issues 

were for the Employee Appeal Board. 

You started this as kind of a lead-in to it, whether—what would 

drive me to write a separate opinion? Not being satisfied with the 

analysis of the majority in a significant way, and I could not get 

the writing judge to shift enough to agree, might cause me to write 

a separate opinion. It did not in this case, and that particular analysis that the dissent focused more on, or that language, didn’t 

cause me to write either, obviously. But that’s part of it. 

To me, that case was about the review standard and the deference that is given to administrative agencies. It was a tough 

case. Let me assure you and this committee, since it’s maybe a 

question, that everyone took that case very seriously. I think, obviously, the employing agency did because they terminated her. The 

Employee Appeal Board, at least, acknowledged the significant 

unacceptability of that phrase. 

The hearing officer may not have looked at it the way you and 

I would prefer that it had of been phrased, but I think the issue 

in that case is, was the agency that made the decision that she 

should not have been terminated for this word within its range of 

discretion in doing that? 

That is the agency that the legislature gave the authority to 

make these decisions, subject to review on the arbitrary and capricious substantial evidence standard. Based on that, I thought the 

majority opinion had said enough. 

Senator FEINGOLD. Thank you for those answers. 

53

Now on the custody case that we’re talking about, the concurrence that you joined in also states, ‘‘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 choices. 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.’’

Do you think that a person’s sexual orientation is a choice? 

Judge SOUTHWICK. I think that is an issue of debate. I don’t want 

to take a position as to what the best indication of science is. I 

know that is a highly controversial point, that it is solely a matter 

of choice. But I think what she said, Judge Payne, in her opinion, 

and I’m trying to recall exactly what you read, and I’ve read it recently, that it may have been taking—starting the relationship 

with this other woman was the choice, but I could be correct—incorrect. The woman moving in. But in the context of 2001, is all 

I want to return to. 

When that opinion was written, the law in the State of Mississippi that I was obligated to apply, and the rest of us on the 

court was as well, that that was a legitimate factor for a chancellor, who makes decisions like this, the trial judge on custody, to 

consider. It was not an abuse of his discretion, I decided, for him 

to have considered that. 

Senator FEINGOLD. Do you believe that one of the consequences 

of having a same-sex relationship should be to risk losing custody 

of your own child? 

Judge SOUTHWICK. I think, if the law I’m supposed to apply says 

that, then my hands are tied. If you’re talking to me generally as 

a policy matter, I don’t think that’s my realm. 

But I will say—and you know this, and I’ve said this already—

the legal landscape in 2001 was Bowers v. Hardwick, which says 

there was no privacy interest, liberty interest in even private homosexual relations. In 2003, there became such a recognized right 

and that changes the analysis, at least, and may well change the 

outcome. 

Senator FEINGOLD. Well, why then did you believe it was necessary to join the concurrence, which I think you’ll admit takes a 

much harsher stand on the question of the mother’s gay relationship than even the majority opinion does. Because you were explaining that you were applying the law, but, you know, you have 

a choice about what reasoning you go along with here. 

Judge SOUTHWICK. I joined the concurring opinion because it 

added something about policy from the legislature. The first part 

of her opinion, Judge Payne’s opinion, is talking about three different statutes which showed the legislature itself quite recently, 

the Mississippi legislature, had taken the position consistent with 

what we were talking about, again, not recognizing the change in 

law that would be coming. 

All the majority talked about, if I recall correctly, were Supreme 

Court precedents. And I thought the fact that the policy, which 

really needs to be set by the legislative branch, had mirrored, was 

consistent with what the Supreme Court authority had meant as 

well. 

54

Senator FEINGOLD. Do you believe that gay, lesbian, bisexual, 

and transgendered Americans are entitled to equal protection of 

the laws? 

Judge SOUTHWICK. Well, I think everyone is entitled to be treated fairly. If you are talking about, as a fundamental right, I think 

the law is evolving as to where the fundamental rights regarding 

gay relationship exist. And I will apply the law rationally, reasonably, and the fairest reasoning and reading that I can make of the 

precedents that control. 

Senator FEINGOLD. But isn’t it the case that all Americans, regardless of this issue, are entitled to equal protection of the law? 

Judge SOUTHWICK. I’m sorry. I cut you off. All people—

Senator FEINGOLD. Isn’t it the case that all people, all Americans 

are entitled to equal protection of the law, that it’s not just a question of fairness, but they’re specifically entitled to equal protection? 

Judge SOUTHWICK. All people are entitled to equal protection. I 

was just trying to make the point that what the level of this protection is, the level of scrutiny on various kinds of limitations that 

might be imposed, has not yet been fully explained. 

Senator FEINGOLD. Judge, do you stand by the majority opinion 

you joined in Richmond and the concurrence you joined in S.R. v. 

L.W.? 

Judge SOUTHWICK. Stand by them. I believe the Richmond opinion was correct. I didn’t write it. I joined the concurrence. I believe, 

whatever the reasons were that I joined at the time, that it did 

add, at least in talking about the statutes, very important additional policy considerations, which is that the legislature has spoken. If you say I’m endorsing everything in an opinion that I did 

not write every word, every phrase, I do not. 

Senator FEINGOLD. You’re not disassociating yourself from either 

opinion? 

Judge SOUTHWICK. I agreed with them at the time. I agree with 

the outcome at that time as being correct. But all I’m saying is, I 

didn’t write them. The precise language is not necessarily what I 

would have chosen. I would have to—I haven’t gone through my 

mind of how I would have written such a thing. 

Senator FEINGOLD. Well, I appreciate it. 

There’s certainly nothing the judge has said that suggests that 

he’s separating himself from his agreement with those opinions at 

this point. Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Senator Coburn? 

Senator COBURN. Just a short followup from Senator Feingold. If 

I’m a homosexual male and I’m in front of your court, will I have 

the same access to your court as anybody else? 

Judge SOUTHWICK. Absolutely. 

Senator COBURN. Will I have the same treatment as anyone else? 

Judge SOUTHWICK. You will. 

Senator COBURN. Will the law apply to me equally, as it does to 

anyone else? 

Judge SOUTHWICK. It will. 

Senator COBURN. Thank you. I have no other questions. 

Senator WHITEHOUSE. Senator Kennedy? 

Senator KENNEDY. Thank you. Thank you, Mr. Chairman. I regret I was not here earlier for the presentation. 

55

I congratulate you on the nomination. The Fifth Circuit, as you 

know, has played an extraordinary role in the history of this country. I was fortunate to be here at the times where some of the great 

giants of the judicial system were really awakening the conscience 

of the Nation with regards to issues on race. They had a very, very 

powerful impact in terms of the Nation itself and development of 

various legislation. 

We were always mindful that there’s a large minority population 

that this Fifth Circuit deals with, and issues of fairness, protection 

of equal rights, and civil rights are obviously matters of enormous 

importance. They are important in any place, but obviously with 

the make-up of the particular population, has additional kinds of 

relevancy, I think, with regards to those who are going to serve on 

the court. 

And I know you responded to Senator Feingold with regard to 

the Richmond case. I listened to his questioning you about your 

view, still, which you have signed on for that opinion, and I listened carefully to your answer. 

I was just wondering why you would not say, well, certainly in 

retrospect, I wish I’d had a separate opinion, I wish I’d wrote a separate opinion on this, because even in retrospect, having listened 

to the dialog, the concerns—maybe you missed that in the first 

part, although it’s very difficult to understand, particularly when 

that word is used, that people—the degree of offensiveness and the 

degree that they are concerned, or worried, or upset, and trying to 

measure that is fairly obviously obnoxious word under any kind of 

set of circumstances. 

But I was just listening to the response to Senator Feingold 

when asked if you still would have signed on to that part, and 

you’re telling us here today that you would have. Not that you 

ought to change just because you are here before the committee, 

but I think many of us would say, well, given all of the kinds of 

concern about this—all of us alter and change our positions, you 

know. When we’re asked about it, to try and sound noble, we quote 

Lincoln, you know. But, you know, there are important changes in 

life and people do change their mind and people learn. I mean, this 

is a terrific process. 

But it is troublesome, when you’re asked about whether now, 

given all of the kinds of considerations on this, whether you 

wouldn’t have said, look, I did it at the time, but, you know, knowing what I know now, I wish I had written a separate opinion on 

that part. 

Judge SOUTHWICK. Well, Lincoln has too many things to quote, 

Senator. But one that strikes me right now is, ‘‘Don’t change horses 

in midstream.’’ I think when I got on the majority opinion horse 

I relied that—I looked at it very hard. The person—the judge who 

wrote it was an extraordinarily able judge. I think the opinion is 

carefully written and it’s written to give deference to the agency 

that’s supposed to make the decisions about the kinds of things 

you’re talking about, Senator. 

What is the proper reaction to something that’s totally inappropriate as this in the workplace? That’s certainly to take every step 

to make the employee realize that that is unacceptable, cannot be 

done. But where to go from there? You have an employee who 

56

made a mistake, a serious mistake. What does the agency need to 

do about it? The Employee Appeals Board made its decision, and 

we, at the appellate level, were applying our review standard to 

that. 

If you’re saying, in light of all of the criticism today do I wish 

I had written a separate opinion or whatever else, I just can’t go 

back on the analysis that I did there. If I had the same case in 

front of me in the future, should I be fortunate enough to be a 

judge to have a case like that, I would certainly evaluate. 

I mean, the important thing for all of us is constantly to be 

aware of how what we do as judges affects people. I have tried to 

do that, and every day is a learning experience, I hate to admit, 

of new things that I need to take into consideration. 

So in the future, in a case like that I would certainly consider 

what has happened, if I’m in a position to make decisions in the 

future. 

Senator KENNEDY. Well, I appreciate it. Lincoln, of course—

‘‘Ralph Waldo Emerson’’ said ‘‘consistency is the hobgoblin of little 

minds’’ as well, so we can go around. But the real issue on this 

thing is, that word, whether there’s any way that anybody can understand it in any other kind of framework, that it was derogatory 

and always offensive. 

Let me go to the issues on consumer and workers’ rights, the protecting of workers that you had on—I think you’re familiar with 

the Canon MidSouth X-Ray Company. You’re familiar with that 

case. You had an individual who was—some of your decisions—just 

in looking through the workers’ rights case, some of your decisions 

seem to bend over backward in favor of the larger corporation at 

the expense of individual Americans. 

The dissent in the Canon case denied the claims of a darkroom 

technician who became ill, suffered severe seizures, headaches, 

nausea, being forced to handle toxic chemicals at work without 

proper safety precautions. 

The employer had ordered her supervisor not to tell her that the 

darkrooms were dangerous, not to take any safety precautions. 

After many years, she finally found a doctor who diagnosed her illness as caused by toxic chemicals at her job. 

Seven of your colleagues on the court ruled that she was entitled 

to a trial to hold the company accountable for the damage to her 

health, but you have denied the claim, arguing the statute of limitations had run out. She should have figured it out on her own, 

even before the doctor made the diagnosis that her illness was related to her work. 

The majority opinion stated that she lacked any specialized 

training and was, just by all accounts, a darkroom technician who 

cannot reasonably be expected to diagnose a disease on which the 

scientific community has yet to reach an agreement. Why did you 

think it was reasonable to require her to figure out that her illness 

was work-related? 

Judge SOUTHWICK. Senator, I don’t think I was deciding that. It 

was my interpretation, from controlling case law and the general 

statute of limitations in Mississippi that we were applying, that 

that had already been decided. 

57

There were two statutes of limitation that were being discussed, 

and we all agreed on which one applied. This was not medical malpractice. It was not in any of the other specific areas of claims 

where different statute of limitations would apply, so it was the 

general 3-year statute of limitations, 6-year at one point. I don’t remember now where in the change of that statute this particular 

case arose. 

And the statute simply said that, within 6 years—or 3 years—

of the injury the claim had to be brought, and there was case law 

as to what that meant. I talked about a medical malpractice statute of limitation as a comparison. 

Under that statute, the cause of the injury—I don’t think that’s 

the phrase of the statute, but the causation—must be known, or 

reasonably known, before the statute of limitations begin. 

When this came up—when this issue came up in the last few 

days, a colleague of mine looked at the developments of the law 

since this case. In 2005, when I was gone, the State Court of Appeals, the best I can tell, agreed with my interpretation without 

signing it, that that is the way the statute of limitations is to be 

interpreted, and the Supreme Court, in February, just a few 

months ago, agreed on the basic point that it’s the knowledge of the 

injury and not the knowledge of the causation. 

Now, sir, I agree with you 100 percent that that is a very harsh 

case for a lot of plaintiffs, and what they need to do and how all 

that works is a difficult matter for them to figure out. 

But my duty as a Court of Appeals judge is to apply the statutes 

passed by the legislative bodies, to apply them and to apply the interpretations that controlling legal authority does—has come up 

with. And that will lead to harsh results. And I—it’s not my purpose in being an appellate judge to lead to harsh results, but if 

that’s where the legal analysis takes me, I feel obligated to go 

there. 

Senator KENNEDY. Well, it seems that your view would give the 

company a free ride on this, even though it tried to hide the truth 

from the victim. You had concerns that we have—in private practice, you had a large portion of your work involving defending oil 

and gas companies, so we’ve got to try and find out whether that’s 

your practice on it. Let me ask you about—oh. Is my time up? 

Senator WHITEHOUSE. We’ll probably have a second round. 

Senator KENNEDY. OK. All right. Fine. I thank you. I apologize. 

Senator WHITEHOUSE. Senator Durbin? 

Senator DURBIN. Judge Southwick, thank you for joining us 

today. 

I think it is very clear that the context of your nomination is a 

big part of our deliberation, and I think you must understand that 

from some of the questions that have been asked of you. It is my 

understanding that President Bush has submitted 10 nominees for 

the Federal bench in Mississippi, 7 at the District level, 3 at the 

Fifth Circuit, and not one has been an African-American. 

Mississippi being a State with more than a third of the population African-American, you can understand why the AfricanAmerican population feels that this is a recurring pattern which 

does not indicate an effort to find balance on the court when it 

58

comes to racial composition, or even to give African-Americans a 

chance in this situation. 

But having said that, I believe you have the right to be judged 

on your own merits in terms of your own nomination, and I’d like 

to ask you a couple of questions, if I can. 

Now that we’re going through this whole inquiry about the dismissal of U.S. Attorneys, we are finding that there’s been an involvement of the White House in a lot of decisionmaking at the Department of Justice. One of the things that seems to be recurring 

is this theme that membership in the Federalist Society is a good 

box to check if you want to be viewed favorably by the Bush administration. 

You were a member of the Federalist Society and wrote articles 

for the Federalist Society. Could you describe to me why you joined 

the organization and what you think it represents? 

Judge SOUTHWICK. I may be forgetting, Senator. I think I wrote 

one article. But you’re absolutely right, I did write something for 

one of their newsletters on judicial elections and the First Amendment. 

I joined when I was here in the Department of Justice in 1989 

to 1993. I don’t remember when, exactly. The meetings were convenient. The Assistant Attorney General, who was in charge of the 

division I was in—I was a Deputy Assistant—a Deputy Assistant—

went to them. 

I found them intellectually challenging. Some very impressive intellects were there, talking about issues that, in my practice in 

Mississippi, had not been particularly front burner. 

And I saw it as a—not to be too obvious—a conservative legal organization trying to provide its members, similar-thinking individuals, an opportunity to work on ideas and work on different policy, 

and different ways to implement that policy. 

Senator DURBIN. Was this considered a good professional move 

for a young Republican attorney to be part of the Federalist Society, to have that on the resume? 

Judge SOUTHWICK. It probably was. I’m not saying that that 

would have been one of the factors that I would have considered, 

but I’m not saying that that’s—that I didn’t have some interest in 

finding out what it was about. And so it wasn’t just to be pleasant 

and supportive to my friend, Stewart Gerson, who was Assistant 

Attorney General. He invited me. It was interesting, and I went to 

it. 

Senator DURBIN. About 8 years you were a member, is that correct? 

Judge SOUTHWICK. I really have not checked. I guess I could ask 

the Federalist Society when I got out. But I stayed. There really 

was an organization for a while in Mississippi. I remember going 

to a talk occasionally. I wasn’t nearly as active, with all due respect 

for those who were running it, in Mississippi as I was up here. 

Senator DURBIN. I do not want to paint a sinister picture of the 

Federalist Society, but it is an amazing coincidence that so many 

nominees have that in their background. 

In the history of civil rights in the South, which I’m sure you’re 

more aware of than I am, there have been some interesting heroes, 

and one of them was Judge Frank Johnson in Alabama. 

59

Congressman John Lewis credits Judge Johnson and his courage 

with allowing the Selma march to take place and really giving an 

opportunity for that movement to evolve. Had he not shown that 

courage, at great personal and professional expense, John Lewis 

and others think it might have taken many more years to reach the 

achievements that they reached. 

So when you look back at your career in public service, can you 

point to an example of something that you have done, on the bench 

or otherwise, where you really stepped out and subjected yourself 

to criticism for taking an unpopular view on behalf of the dispossessed, or minorities, or poor people where it may have subjected 

you to criticism for showing courage in trying to side with a position that you thought was right and might not have been popular? 

Judge SOUTHWICK. I wish those came readily to mind. Perhaps 

I just didn’t keep enough of a catalog of experiences. You mentioned Frank Johnson, a conservative Republican, but probably 

never a member of the Federalist Society. 

Senator DURBIN. An Eisenhower Republican. Yes. 

Judge SOUTHWICK. Alabama Republican. And I—not because of 

this hearing, or not because of anything else, but judges, and Federal judges, and Fifth Circuit judges fascinate me. 

I read Taming the Storm by Jack Bass on Judge Johnson just a 

few months ago. His career is an inspiration to anyone who wants, 

no matter their political background, no matter what they have 

done before arriving at the bench, to apply the law even-handedly 

and imaginatively to the issues that come before him. I don’t want 

to get into analogies of former colleagues of yours, U.S. Senators. 

I’m no Frank Johnson, I know that. 

Senator DURBIN. None of us are. But can you think of a time in 

your life or career where you did bend in that direction, to take an 

unpopular point of view on behalf of those who were voiceless or 

powerless and needed someone to stand up for their rights when 

it wasn’t a popular position? 

Judge SOUTHWICK. I hope that a careful look—and the answer is, 

no, I cannot think of something now. But if I can give you this answer. I cannot recall my opinions, and I don’t think of them in 

those terms. 

I think of them in terms of not considering the reaction, not looking at the result and working backward, but following through and, 

no matter how popular or unpopular the decision may be, to come 

to the conclusion that I think is compelled by controlling authority. 

Senator DURBIN. I hear that often and it’s certainly a reasonable 

answer. But I find many times, when it comes to legislation, and 

I think when it comes to ruling on court cases, you really have a 

chance to make a judgment. It isn’t so clearly one way or the other, 

it’s a matter of deciding what the compelling situation or values 

are that are at stake. I think that’s what I was looking for in that 

question. 

May I ask you about this Richmond case just for a moment? The 

Supreme Court, even the most conservative members of our U.S. 

Supreme Court, when they considered a case not long ago involving 

cross burning, said, really, this is a symbol that everyone understands. It goes way beyond an expression, way beyond free speech, 

60

and clearly is so inherently evil in the minds of so many Americans, that it has to be treated differently. 

As you reflect now on the Richmond case and the use of the ‘‘N’’ 

word, can you draw any conclusions from our reaction to it and the 

fact that your participation in that case leads people to conclude 

that you were insensitive? 

Judge SOUTHWICK. I certainly see that. I certainly see that as 

being the reaction from some quarters. There was press coverage 

of the case when it was handed down. And that’s part, I think—

that’s part of what judges need to do, though, is to look at cases 

and decide them fairly, honestly, and not worry about public reaction. 

Now, you’re raising a slightly different point, and I will accept 

that. You’re saying the public reaction, in itself, is a sign of the 

error, that this is a more fatal word than we gave it credit. 

And I will say that there is no worst word. I think the majority 

opinion for the Supreme Court of Mississippi used some words they 

could come up with which would be the worst for other races and 

then compare to using that word that was the subject of that case. 

And it is unique, I suppose. I hope it’s unique. I can’t think of anything else right now. Cross burning, maybe. 

What the factual issue, to some extent, in that case was, the Employee Appeals Board that we were reviewing, who has the authority by State law to make these decisions, was clearly in error to say 

that it was not so damaging that this woman needed to be fired, 

that she had no further employment life after that, that she 

couldn’t in some way survive having used that word, no matter the 

context and whatever else. 

And it could be that that word is so serious that every workplace 

is permanently damaged insofar as that worker is concerned. I 

didn’t see that evidence in the record. You’re saying, should I have 

been more aware of it myself? I have certainly seen this again. 

But I do want to emphasize that everyone in this case took it extraordinarily seriously, including the writing judge for the Mississippi Court of Appeals, who I think treated the issue well. 

Senator DURBIN. Thank you very much, Judge. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. I would like to ask you to do me one favor, 

and then if Senator Hatch would like to close before we excuse this 

witness. I assume you have access to Google? 

Judge SOUTHWICK. Oh, yes. I think I have heard of that. 

Senator WHITEHOUSE. Do me a favor and Google the phrase ‘‘homosexual lifestyle’’ and take a look at the context in which the top, 

I don’t know, 50 or 60 hits come back to it. And the record will be 

open for a week. I’d love you to get back to me with your thoughts 

about that, and in particular whether, having seen the context in 

which that phrase is used, having seen the loaded nature of it, I’d 

love to urge you to never use that phrase in an opinion written on 

behalf of the Fifth Circuit Court of Appeals of the United States 

of America. 

Judge SOUTHWICK. Senator, I thank you for that suggestion as 

a more loaded phrase than I must have given it weight 6 years ago. 

Senator WHITEHOUSE. I appreciate that. 

Senator Hatch, would you like to say something in conclusion? 

61

Senator HATCH. Well, the only thing I would add is, you’re clearly highly qualified. You’re clearly a very good person. You’re clearly 

a person who applies the law, regardless of public opinion, which 

is what an appellate judge should do. You’re clearly a person who’s 

learned in the law and you have the backing of the whole American 

Bar Association. 

Now, I hope that, around here, being a member of the Federalist 

Society is not a disqualification because it is not a political organization. It basically stays out of politics. 

The prime function of the Federalist Society, as I view it—as a 

member of the board of advisors, by the way—is to hold conferences where they bring people from all points of view, from the 

left to the right, to discuss majors issues in the law. And they’ve 

done a pretty good job throughout the country. 

Naturally, since it’s considered more of a conservative society 

than a liberal society, then naturally, I suppose, the Republican administrations have always looked to the Federalist Society for some 

of their leading lights in law, most all of whom are Law Review 

graduates from major law schools or from law schools around the 

country. 

So I hope that, by implication, some of these comments don’t 

denigrate the Federalist Society, which I think does a very, very 

good job of helping to discuss the various ramifications of some of 

the most important decisions and laws today. 

Now, you’ve made it very clear that you’re not here to defend the 

Federalist Society and that you had a limited relationship there. I 

think the important thing here is that you’ve demonstrated here 

today an adherence to the law, even sometimes when it’s difficult 

to adhere to. 

And should you ever get on the Supreme Court of the United 

States of America, maybe you can make some of those ultimate fine 

decisions that have to be made. But until then, you pretty well 

have to abide by the law, even if you would like to change the law, 

unless there is some give and take where you can change it. 

So this is important. I think you’ve handled yourself very well 

here today. 

Judge SOUTHWICK. Thank you, Senator. 

Senator HATCH. You have the backing of two great Senators and, 

I would suggest, a whole lot of other very fine Senators who would 

love to see you serve in the judicial branch of this Government 

from a Federal standpoint. 

I want to commend you for the life you’ve lived, the work you’ve 

done, the background you have, the intelligence that you’ve displayed, and the willingness to serve in these positions. 

One of the things we’ve got to do, Mr. Chairman, is we’ve got to 

elevate judicial salaries so that we can keep the best and the 

brightest coming to the court. And you’re clearly one of the best 

and the brightest. 

But we’re seeing a shift right now, where some of the best and 

brightest are not willing to serve in the Federal courts any more 

because Law Review graduates make more than they do right out 

of law school. And when you have a Law Review graduate starting 

at $200,000 a year, plus a signing bonus of another $200,000, you 

can see why that’s kind of not the way to treat the Supreme Court 

62

Justices, and certainly the Chief Justice, of the United States of 

America. 

So I’m counting on you, Senator, to help us to change that salary 

structure, even though it may mean placing the Federal judiciary 

above ourselves. 

Senator WHITEHOUSE. Point taken, Senator Hatch. 

Senator HATCH. All right. I’m counting on you. From here on in 

I’m going to hold you to that. 

Senator WHITEHOUSE. Just point taken. 

[Laughter.] 

Senator HATCH. That’s great. That’s great. Well, I just want to 

personally thank you for being willing to serve. As you know, we’re 

all concerned about justice, equality, and equal treatment under 

the law, just to mention three very important aspects. And I have 

every knowledge of your background, that you’re as committed to 

doing right in those areas as anybody we’ve ever seen here. So, I’m 

grateful that you’re willing to serve. 

Thank you. 

Judge SOUTHWICK. Thank you for your comments, sir. 

Senator WHITEHOUSE. Judge Southwick, thank you for your testimony today. You are excused. But the record of this proceeding will 

remain open for a week for anyone who wishes to fill in with further information. 

Senator HATCH. Mr. Chairman, I have to leave, but I want to say 

that I certainly support the other two nominees. I will do everything in my power to make sure that we get all three of you 

through as quickly as possible. I am, again, expressing my gratitude to Senator Leahy for being willing to go ahead with these 

hearings and to push these nominees. That means a lot and I appreciate that. 

Senator WHITEHOUSE. I appreciate that, Senator Hatch. And as 

everybody knows, he is a very distinguished former Chairman of 

this committee, so his words to that effect are very significant and 

carry great weight. 

Would Judge Neff and Magistrate Judge O’Grady come forward 

to be sworn, please? 

[Whereupon, the witnesses were duly sworn.] 

Senator WHITEHOUSE. Please be seated. Welcome. 

Do either of you have a statement of any kind you would like to 

make? 

STATEMENT OF JANET T. NEFF, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN 

Judge NEFF. I just would like to thank you, Senator Whitehouse, 

for your chairing of this committee, and for the Committee itself, 

for holding this hearing. Special thanks to Senators Levin and 

Stabenow for their kind remarks in introducing me, and in forwarding my name to President Bush. And thank you to President 

Bush for his nomination to serve on the Western District of Michigan. It’s a great honor to be here and to be a nominee. 

Thank you. 

[The biographical information of Judge Neff follows.]

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Senator WHITEHOUSE. Thank you. 

Judge O’Grady? Before you say anything, I want you to know 

that I’ve done a little bit of homework on you. 

Judge O’GRADY. You have? 

Senator WHITEHOUSE. You were an Assistant U.S. Attorney in 

the Eastern District of Virginia. 

Judge O’GRADY. I was. 

Senator WHITEHOUSE. And you served at the time that I served 

as U.S. Attorney for Rhode Island. 

Judge O’GRADY. And I knew that about you, Mr. Chairman. 

Senator WHITEHOUSE. So I know your former boss, Helen Feahy. 

Judge O’GRADY. All right. 

Senator WHITEHOUSE. And as part of my due diligence as the 

Chairman of this committee, this panel, I gave her a call yesterday 

to check you out. Her reaction was quite impressive. She essentially burst out, saying, ‘‘Oh, he’d be a wonderful judge.’’ And then 

she went on to say how conscientious you had been as Assistant 

U.S. Attorney, how hardworking you had been, what an asset you 

had been to the office, how valuable you were as a member of her 

staff. 

And in addition, she also said that you were one of the nicest 

people she’d had the occasion to work with in a position where 

being nice isn’t always part of the job description, and that you 

were viewed with great affection by your colleagues as a very kind 

and thoughtful person. So, it was a wonderful series of accolades 

and I thought I should pass those on to you now where they can 

be a part of the record of this proceeding. 

Judge O’GRADY. Well, I’m very thankful that you made that call. 

Senator WHITEHOUSE. Glad it worked out that way. 

STATEMENT OF LIAM O’GRADY, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

Judge O’GRADY. I happen to feel the same way about Ms. Feahy. 

She was a wonderful U.S. Attorney. We were Assistant Commonwealth Attorneys together in Arlington County, and then followed 

and supported each other during our careers. I very much believe 

the way that she practiced law was an appropriate way to practice 

law. So, we are both in each other’s camps, and have been for 

many, many years. 

I’d like to thank you, sir, and other members of the committee, 

Senator Brownback, for graciously granting me the opportunity to 

come here today. I know that your staffers have worked very hard 

as well. As Judge Neff has said, it’s a wonderful honor to get this 

far and to be here today. It’s a privilege. 

I realize that you take your jobs very seriously, and it’s extremely important to you and to the entire Senate that you choose 

the right people for these very important positions. Again, I thank 

you for the opportunity to appear here today. 

[The biographical information of Judge O’Grady follows.]

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Senator WHITEHOUSE. Well, you are both very welcome here. The 

fact that you are here today speaks very highly of the accomplishments that you have achieved in your professional lives, it also 

speaks very highly of the way you have served your communities 

and the standing that you have in your communities, that you’ve 

risen to the point where you have become a nominee for these positions. 

And certainly the extremely kind words that Senator Levin and 

Senator Stabenow had to say about Judge Neff, and that Senator 

Warner had to say about you, and the kind words that I know Senator Webb put into the record because he could not be here today 

about you, Judge O’Grady, are a testament to lives well lived, and 

we appreciate that you are here. 

Senator Brownback? 

Senator BROWNBACK. Thank you very much, Mr. Chairman. 

Welcome, both. Congratulations on being here at this nomination. Judge Neff, I think I chaired the hearing last year with you 

being here. 

Judge NEFF. You did. 

Senator BROWNBACK. There’s been a series of things that have 

happened since that time period, and I want to go just a little bit 

into those. Then I want to ask some factual setting questions, and 

I want to ask some legal opinion questions, if I could, of you. 

As you know, I chaired the hearing with several people from the 

Western District of Michigan that were up. I then was traveling in 

Michigan, and a number of people raised an issue with me that I 

did not know about prior to the hearing taking place. Then we 

were past the hearing phase and it was going to the floor and there 

wasn’t a chance to get your comments on the record, and I wanted 

to get those on the record. We weren’t able to do it last year. 

I’m very pleased you’re willing to come up this year to answer 

these questions. These are a series of factual questions, a series of 

legal questions I would like to ask you about. 

I reviewed your resume at length and wanted to go through this 

set of questions because of its bearing on a current set of legal controversies that are pending in front of the court. That’s the issue. 

These are active legal matters. 

We need to be sure that, when judges go on the bench, that they 

are able to hear cases fairly and in an unbiased fashion. There are 

things sometimes that show up in the background that you ask 

questions, can they be fair and unbiased on a series of cases that 

would come up? So, that’s what I want to ask you about. 

This surrounds something that was reported in the New York 

Times. And what I’d like to do is give you a chance to explain, factually, the setting that took place. It was reported in the New York 

Times that you, to use their terms ‘‘led the ceremony of a samesex commitment ceremony in Massachusetts in 2002.’’ I’d like to 

get your statement. Is that accurate of what the New York Times 

reported, and what is it, factually, that took place there in Massachusetts in 2002? 

Judge NEFF. Well, let me say, first, Senator, that I appreciate the 

opportunity to appear and to clear the air for whatever concerns 

you may have. As you probably are aware, I did not author the anVerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00137 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC
134

nouncement that appeared in the New York Times and had nothing to do with the language that was used there. 

I did not, in fact, lead the ceremony. I was there, really, in two 

capacities. My family and I were there as guests, and I also participated as the homilist in the formal ceremony itself. And to give you 

a little factual context for our attendance at the ceremony, the Neff 

and Curtain families lived side by side, sharing a common driveway, for 26 years. We were, and are, a part of each other’s extended families. The Curtains have two daughters, who were about 

8 and 10 years older than the Neff daughters. They were baby-sitters for us. 

They were, in practicality and in spirit, older sisters for the Neff 

girls. Our families grew to be close friends. We still, to this day—

even though the Curtains have moved to a condominium nearby, 

we still celebrate Christmas Eve together as families, and whatever 

kids are home for the holidays are part of that. 

Whenever our parents were still alive and came to visit on 

Christmas or other holidays, they were part of that whole extended 

family, and it’s still true. Colleen Curtain’s mom is still alive and 

we still see her for holidays. 

When my daughter Jenny, who’s here today, was married last 

fall, Colleen hosted a bridal shower for her. Colleen’s mom came 

over from Flint, Michigan to be part of that bridal shower. So we 

were there as a family, celebrating with another family, a very important event in Mary Curtain’s life. 

Mary is someone who is important to us and whom we love. And 

when—it was a foregone conclusion that we would be invited and 

that we would attend. And when she and Karen, her partner, invited me to deliver the homily, I was pleased to do that. So that’s 

the factual context of our appearance and participation on September 21, 2002. 

Senator BROWNBACK. What was the event? 

Judge NEFF. Well, it was really a two-part event. The first part 

of it was a commitment ceremony, for want of a better description, 

that was, in fact, led by a minister of the United Church of Christ, 

I believe. It was very brief, I think probably not more than 20 minutes in total. 

But preceding it was—the night before there was a rehearsal 

party for every—for all of the guests, because everybody was from 

someplace else. The Curtains hosted a lovely dinner at a hotel 

there in western Massachusetts. 

On the day of the ceremony, before the ceremony itself, there 

was a cocktail party. And after the brief ceremony, there was a dinner and a band and dancing, and it was a wonderful party. 

Senator BROWNBACK. But the ceremony itself you classify as 

what you would call a ‘‘commitment ceremony’’? 

Judge NEFF. It was—that is, I think, what it was called at the 

time. Yes. 

Senator BROWNBACK. Was it a marriage ceremony? 

Judge NEFF. It was not. 

Senator BROWNBACK. OK. 

And your part was as a homilist? 

Judge NEFF. That’s correct. 

135

Senator BROWNBACK. Did anybody else give a homily at the ceremony? 

Judge NEFF. I really don’t remember for certain. There were 

other people who spoke and the minister who led the ceremony 

spoke. Whether what she said could be described as a homily, I 

really don’t recall. 

Senator BROWNBACK. The reason I want to ask this is because 

of the legal issues surrounding the question, by the court’s interpretation, of what the Constitution requires in guaranteeing 

whether or not the country must give same-sex unions equal force 

and authority as marriage has been given between a man and a 

woman. This is an active legal issue, as I’m sure you’re familiar 

with, at the present time. 

Senator WHITEHOUSE. May I ask the Senator a question? Would 

you yield just a second? 

Senator BROWNBACK. Sure. 

Senator WHITEHOUSE. The court that you’re referring to, just so 

the record is clear and so that I can follow the discussion, is which 

court? 

Senator BROWNBACK. Both Federal and State courts. This is an 

active issue in the Federal courts and I believe Nebraska has ruled 

on this. It’s gone up to the circuit courts there, and it’s been an active issue in States. 

Senator WHITEHOUSE. OK. Not a specific court or a specific court 

proceeding at this point. 

Senator BROWNBACK. It’s an active legal issue around the country. 

Senator WHITEHOUSE. OK. Thank you. I’m sorry to interrupt. 

Senator BROWNBACK. No problem. 

If I could ask you a series of legal questions. Do you believe the 

Constitution creates a right to same-sex marriage for the citizens 

of Michigan? 

Judge NEFF. I think that that is a question of, as you indicate, 

Senator, continuing legal controversy. It is a question which may 

very well come before me as a Court of Appeals judge in the State 

of Michigan, because I think, as you are aware, in Michigan we 

have both statutory rulings on that and we have a constitutional 

amendment that was passed in 2004 dealing with that. 

And because of that, I think that it is improper for me, unethical 

for me, to speak to whether I believe or don’t believe the legal effect of that, because that is, as you say in your terms, an active 

legal issue, both in the Federal and the State courts and one to 

which I simply cannot offer an opinion that would indicate any prejudgment on my part should that issue come before me, and it may 

very well. 

Senator BROWNBACK. What is your understanding of the current 

state of the law in this regard in Michigan? 

Judge NEFF. Well, it’s not entirely settled. There are at least two 

cases of which I am aware that are currently pending in the Court 

of Appeals dealing with the amendment that was passed in 2004, 

and I do not know whether either of them has reached decision. I 

don’t believe that they have. So, again, the issue is, it’s one that 

is not settled yet. We have—we obviously have a constitutional 

136

amendment and that has not yet been—made its way through the 

courts. 

Senator BROWNBACK. A constitutional amendment passed by the 

people of Michigan? 

Judge NEFF. That’s correct. Reached the bell via referendum, I 

believe. 

Senator BROWNBACK. And the text of which reads—are you 

roughly familiar with the text of that? 

Judge NEFF. Very roughly. 

Senator BROWNBACK. Could you describe what that is? 

Judge NEFF. It has to do with language that indicates that marriage is between a man and a woman. And if I am not mistaken, 

it also deals with the benefits of marriage, the kinds of mutual benefits, such as health insurance and so forth. Those are the kinds 

of issues that are currently pending in the courts. 

Senator BROWNBACK. And Michigan also has a statutory defense 

of marriage law. Is that correct? 

Judge NEFF. Yes, that’s correct. 

Senator BROWNBACK. What’s your understanding of what that 

law provides? 

Judge NEFF. I really don’t have an understanding of it. I have 

never had the occasion to review it and have no opinion with regard to it. 

Senator BROWNBACK. With the understanding, though, of the 

constitutional amendment in Michigan, if a family member or close 

friend asked you today to participate in a same-sex marriage ceremony in Michigan, would you do so? 

Judge NEFF. My understanding of the law in Michigan is that 

there is no such thing permissible as same-sex marriage. It does 

not exist as a legal entity. And so to participate—my answer is, no, 

I wouldn’t participate. I don’t see how I could. 

Senator WHITEHOUSE. Senator, your time has considerably expired and I’m just wondering what your plans are. 

Senator BROWNBACK. I’d like to ask two more questions, if I 

could. If you want to bounce back to me for another round, I’d be 

happy to do that. 

Senator WHITEHOUSE. If you’d do two more questions, then conclude. I know that Judge O’Grady’s children are here, very patiently, and I’m sure they’re eager to move on. 

Senator BROWNBACK. I wouldn’t take the committee’s time on 

this, but this has been an issue that there’s been a series of real 

questions about what factually took place, and what’s the judge’s 

view, potential Federal judge’s view, of the law and whether the 

judge could fairly interpret that. This is—

Senator WHITEHOUSE. Well, since it’s just the two of us, why 

don’t we go ahead and proceed to the two remaining questions, 

with due regard for the well-tried patience of the O’Grady children. 

Senator BROWNBACK. And I apologize to you for that. I wish this 

were not the case. It’s just, this has been something that’s bounced 

around for some period of time, and this is the chance, really, for 

all parties to put forward what it is that we ought to know, the 

judge’s view of the law, and factually. So that’s why I was taking 

that, and I apologize to the family for this. 

137

Would you acknowledge that neither the U.S. Supreme Court, 

nor the Sixth Circuit Court of Appeals has recognized a right to 

same-sex marriage? 

Judge NEFF. I believe that’s correct. 

Senator BROWNBACK. Judge Neff, do you believe you can apply 

the law of the State of Michigan, which does not allow unions of 

same-sex couples, without regard to your personal views on the 

subject? 

Judge NEFF. Senator, unequivocally, I do. I have spent the last 

18 and a half years of my life demonstrating that I can apply the 

law fairly and impartially in each and every individual case that 

comes before me. My job as a judge is to level the playing field, not 

to play in the game, and to enforce the rules, not to make them. 

I am reminded of that regularly. 

Whatever the issue, I recognize that I have to park my personal 

views, whatever they are, at the door of the courthouse before I 

walk in. And I think that 18 and a half years of deciding cases, 

from 174 Michigan appeals reports, to 274 Michigan appeals reports, demonstrate that. 

Senator BROWNBACK. Thank you. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Good. Well, we certainly thank the witnesses for attending. We wish you well as the nomination process 

goes to its conclusion. 

The record of these proceedings will remain open for a week in 

case anybody wishes to supplement the record, but other than that, 

both nominees are excused and the Committee will stand in recess. 

Thank you. 

[Whereupon, at 12:01 p.m. the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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