The Senate, with Senator Dianne Feinstein (D-California) playing a pivotal role, voted 59-38 to confirm Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit, on October 24. The circuit serves Mississippi, Louisiana, and Texas. Gay and civil rights organizations had opposed the nominee as being insensitive to the rights of minorities.

Among the cases cited by opponents was a decision that Southwick joined while serving on the Mississippi bench, which removed an 8-year-old child from her biological mother, in part because the mother is a lesbian. That opinion stated that homosexuality was a "choice" and one possible consequence was losing one's child.

In another controversial case, the judge had upheld the reinstatement of a white state employee fired for using a racial slur against a black colleague.

Southwick's supporters denied that he is a racist and said that opponents were nit-picking at two cases among the hundreds of his decisions.

The vote was largely along party lines, with all of the Republicans supporting Southwick. They were joined by nine, generally conservative, Democrats.

The notable exception was Feinstein, whose vote in committee allowed the nomination to get to the floor of the Senate. She even showed up at the Republican news conference that celebrated the confirmation, where Senator Trent Lott (R-Mississippi) lauded Feinstein as a "hero."

In an unusual move, Congresswoman Barbara Lee (D-Oakland) publicly rebuked Feinstein in an e-mail message sent to constituents.

"Let me also say that as a Californian and as an African American, I am incredibly disappointed that a senator from my home state, Senator Feinstein, would not only vote for confirmation but would be the one to effectively bring the nomination to the floor by voting with the Republicans to approve the nomination in committee," Lee wrote.

Lee also noted that the 5th Circuit has the highest percentage of minority residents, yet all of the appeals court nominees over the last 22 years have been white. There is one black member of the court, the second since it was created in 1869, Lee wrote.

Southwick is white.

In the Senate vote, the Democrats were not able to maintain a filibuster on the nomination, where 60 votes are required to end debate. They lost that by 62-35. The newspaper Roll Call said that Majority Leader Harry Reid (D-Nevada) had agreed to allow a vote in return for Republican support on budgetary issues.

Civil rights groups had led the opposition to Southwick. Wade Henderson, president of the Leadership Conference on Civil Rights, called the vote "a slap in the face to African Americans and people of good will."

"This vote for Leslie Southwick is a vote against the dignity and safety of our families, and an insult to the millions of dedicated GLBT parents raising happy and healthy children across the country," said Joe Solmonese, president of the Human Rights Campaign. HRC had actively opposed the nominee.

Matt Foreman, executive director of the National Gay and Lesbian Task Force, called it "unconscionable that a Democratic-controlled Senate, by an overwhelming majority, would confirm a judge with such a troubling civil rights record to a lifetime seat on the federal bench."