Federal judicial service

Southwick with Trent Lott in October 2007

On January 9, 2007, President George W. Bush nominated Southwick to fill a seat on the United States Court of Appeals for the Fifth Circuit vacated by Judge Charles W. Pickering, who retired in 2004.^[4] Bush had previously elevated Pickering to the Fifth Circuit with a recess appointment in January of 2004, after Senate Democrats blocked two previous attempts to appoint Pickering in 2001 and 2003.^[5][6] In December of 2004, Pickering announced that he would retire from the federal bench and would not seek a nomination for a permanent seat on the Fifth Circuit.^[6] Originally, Bush nominated Mississippi attorney Michael B. Wallace in the 109th Congress to replace Pickering,^[7] but his nomination also became stalled due to fierce opposition from Senate Democrats.^[8] Upon the Democratic takeover of Congress in the November 2006 elections, Wallace asked President Bush not to re-nominate him in the 110th Congress.^[8]

Finding itself without a nominee to a judgeship that had already sat vacant for two years, the White House turned to Southwick, then a nominee to a vacancy on the United States District Court for the Southern District of Mississippi. Bush had nominated him on June 9, 2006 to fill a vacancy on that court left by Judge William H. Barbour Jr., who retired on February 4, 2006.^[9] Southwick had a hearing before the Senate Judiciary Committee on September 19, 2006 and was reported favorably to the floor of the Senate by the Committee on September 29, 2006. However, Southwick, like many other judicial nominees, failed to receive a vote by the full Senate before the 109th Congress adjourned for good on December 9, 2006. Pursuant to Senate rules of procedure, his nomination, along with many others, was returned to the President.

Southwick's successive federal nominations within seven months of each other, though unusual, were not unprecedented. In May of 2006, the Bush White House similarly nominated Jerome A. Holmes to a vacancy on the United States Court of Appeals for the Tenth Circuit after nominating him to a vacancy on the United States District Court for the Northern District of Oklahoma in February of 2006.^[10][11]

The Senate Judiciary Committee of the 110th Congress held a hearing on Southwick's nomination to the Fifth Circuit on May 10, 2007. The hearing was chaired by Rhode Island Democrat Sheldon Whitehouse. Just prior to the hearing, controversy arose over the nomination.

Southwick's nomination was opposed by the People for the American Way,^[12] the Human Rights Campaign,^[13] and the Congressional Black Caucus,^[14] who alleged that Southwick was racially intolerant and homophobic. Two cases that Southwick participated in as a state judge formed the primary basis for the groups' charges.

In the first case, Richmond v. Mississippi Department of Human Services, Southwick joined the majority opinion upholding the decision of the Mississippi Employee Appeals Board to reinstate a white state employee (Richmond) who was fired for a single incident of referring to a black co-worker as a "good ole nigger" outside of the co-worker's presence. When the black co-worker was informed of Richmond's comment, Richmond immediately apologized, and her apology apparently was accepted. The Appeals Board's decision to reinstate Richmond was based, in part, on a hearing officer's opinion that the slur was only "somewhat derogatory" and "was in effect calling the individual a 'teacher's pet.'".^[15] Bound by law to affirm a decision of the Appeals Board supported by substantial factual evidence, the court held it had no authority to set aside the findings in this case, even though Richmond's remark was "undoubtedly ill-advised and indicative of a rather remarkable insensitivity.".^[16]

On writ of certiorari, the Mississippi Supreme Court agreed that "the unique circumstances of this case do not warrant imposition of the ultimate penalty of dismissal." However, the court found the record was insufficient to uphold the Employee Appeals Board's decision that Richmond effectively receive no penalty whatsoever. It decided to remand the case "in order for the board to impose an appropriate penalty less than dismissal, or to make detailed findings as to why no penalty should be imposed."^[17]

The second case often cited by Southwick's critics is S.B. v. L.W., an 8-2 decision upholding a chancellor's decision to grant sole custody of an eight-year-old girl to her father, in part because the mother was a lesbian who had lived with several different partners during the child's life. Southwick joined the majority opinion as well as a concurrence written by Judge Payne which states, in part:

¶ 33. I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted.^[18]

After intense Democratic opposition, Southwick was reported out of Committee by a 10-9 vote on August 2, 2007 when Democratic California Senator Dianne Feinstein voted with the Committee's nine Republicans to send Southwick to the full Senate with a favorable report. Southwick was confirmed by a 59–38 vote on October 24, 2007.^[19] Southwick's confirmation came almost ten months after his nomination to the Fifth Circuit and over a year after he was first nominated to a federal judgeship. He received his commission on October 29, 2007.^[20] Southwick was sworn in as judge of the Fifth Circuit on October 30, 2007.

His first published opinion for the Fifth Circuit was Anthony v. United States, which was released on March 4, 2008. Southwick wrote for a unanimous three judge panel on an issue involving the valuation of private annuities for estate tax purposes. His first published dissent was in Louisiana ex rel. Caldwell v. Allstate Insurance Co., 536 F.3d 418 (5th Cir. 2008) in which Southwick dissented from the assumption of federal jurisdiction under the Class Action Fairness Act.

In August 2018, Southwick found that the Texas Medical Board was entitled to qualified immunity for its unconstitutional warrantless search of a doctor's patient records, drawing an unusual concurrence dubitante from Circuit Judge Don Willett.^[21][22]