The Senate is headed for an extremely close vote Wednesday on the controversial nomination of Judge Leslie Southwick for a lifetime appointment to the U.S. Court of Appeals for the 5th Circuit based in Louisiana.
The 5th Circuit is the same court where controversial nominee Charles Pickering served out a year with a recess appointment after being blocked by Democrats, and where Mike Wallace was withdrawn after a unanimous ABA negative rating.
Republican Sen. Thad Cochran of Mississippi, who has led the fight for this nominee, said fellow Mississippian and Minority Whip Trent Lott is actively working the vote, a task for which Lott is legendary.
"We're hopeful, but you never know how people are going to vote until they vote," he said.
Cochran said a roll call was being taken to determine when they could have all Republicans in their seats. One senior GOP leadership aide predicted to FOX News that the nominee would get the necessary 60 votes to prevent a filibuster and enable confirmation.
John McCain, a Republican presidential candidate, told FOX News on Tuesday that the Arizona senator will return to Washington from campaigning in New Hampshire to vote for Southwick.
McCain has long advocated a vote for Southwick, "criticized Democrats’ handling Of his nomination as outrageous and praised Southwick’s sterling record In legal practice and military service," his campaign said in a statement.
A handful of Democratic moderates are known to be supportive of Southwick, although the number is unclear. Sens. Ben Nelson, D-Neb., and Joe Lieberman, D-Conn., after meeting with the nominee, said they will support Southwick.
"He's not only qualified, but he's a moderate judge ... He's not an activist, and that's my test: Will he be an activist judge?" Nelson said Tuesday.
Judiciary Committee Chairman Patrick Leahy, D-Vt., has not revealed how he would vote, but said, "It's going to be a very close vote, very close."
Nelson is trying to expand a coalition of Democrats to get senators to "support an up or down vote," according to Nelson, a member of the old "Gang of 14" that averted a constitutional crisis in the Senate over judges in 2005.
Nelson tried to convene a meeting Tuesday morning, but the early time proved difficult for schedules. Only Sens. Robert Byrd, D-W.Va., Ken Salazar, D-Colo., and Trent Lott, R-Miss., made it. Byrd and Salazar are also former members of the "Gang."
Nelson said Tuesday he's trying to strike a "quid pro quo" deal with influential Republicans like Lott on spending bills — "cloture for cloture," Nelson called it. The senator wants Republicans to agree not to block a straight up-or-down vote on spending bills. Nelson said Lott is "amenable" to it.
The senator said he continues, with Lott and other Southwick supporters, to have "rolling meetings" on the Senate floor, while the Senate works through a difficult spending bill.
"We're hoping to get a baker's dozen," the senator added, saying he's hoping for 13 Democratic supporters to support the nominee.
The original "Gang of 14" averted a Senate floor implosion in 2005 with a delicate compromise that simply stated that all nominees would get an up or down vote unless "extraordinary circumstances" moved members to an objection.
The phrase was left to each member to define. The original gang included Nelson, Lieberman, McCain, Byrd, Salazar and Democratic Sens. Mary Landrieu of Louisiana, Daniel Inouye of Hawaii and Mark Pryor of Arkansas. Also included were Republican Sens. Lindsey Graham, of South Carolina, John Warner of Virginia, Susan Collins and Olympia Snowe of Maine, Lincoln Chafee of Rhode Island and Mike DeWine of Ohio. DeWine and Chafee were defeated in the 2006 election.
In August, Southwick's nomination was approved by the Judiciary Committee in a nail-biting, near-party-line vote that saw one Democrat, Sen. Dianne Feinstein of California, join Republicans to vote out the candidate.
Judicial nominations are always a popular topic with Republican presidential candidates. Blogging on Redstate.com, a McCain rival for the 2008 Republican nod, former Tennessee Sen. Fred Thompson said, "Senate Democrats simply can’t stand judges who do right by the Constitution and ignore their political causes of the moment. So perversely, Judge Southwick should be honored by the attention Democrats are giving him."
Leahy had been trying, though unsuccessfully, to strike a deal with the White House to put Southwick in a lower court while elevating a minority candidate to preside in a circuit with a high minority population, something powerful interest groups like the NAACP and People for the American Way are demanding. The White House refused to budge.
A former state appeals court judge, Southwick joined several controversial opinions on civil and gay rights cases, garnering extreme opposition from the NAACP, People for the American Way, the Human Rights Campaign and the AFL-CIO. Still, other opponents point to a record they say is hostile to the environment and is too pro-business.
In a 2001 custody ruling giving the child to her father rather than her lesbian mother, Southwick joined the majority opinion in which the words "homosexual lifestyle" were used. PFAW President Ralph Neas called the words "troubling," and the Human Rights Campaign, a gay rights lobbying group, said the words "denigrate" its members.
Another ruling in which Southwick joined the majority involves a highly offensive racial epithet. The majority upheld a lower court ruling re-instating a white state social worker who had been fired for calling an African-American co-worker "a good ole n——-." The court found on a narrow basis that the agency acted properly in rehiring the employee, who had used the epithet only once and apologized to the co-worker. The ruling was eventually reversed by the Mississippi Supreme Court.
Still others see another motive behind the opposition. Sid Salter, Perspective Editor for The (Mississippi) Clarion Ledger, has called all of this a "political smokescreen." He said the nomination is "all about abortion."
"There are 17 seats on the 5th Circuit, two of which are now vacant. Of the 15 occupied seats, 11 are held by Republican appointees of either President Ronald Reagan or the two Presidents Bush. In other words, the 5th Circuit is a conservative court. The pro-choice groups don't want any other conservative judge confirmed to the 5th Circuit," Salter said.
Southwick is currently a visiting professor at the Mississippi College School of Law, where he has been an adjunct professor since 1998. He also taught at the school from 1985 to 1989. He served in Iraq from 2004 to 2006.