Remake the Fifth Circuit!

Yes, please.

The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation’s most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.

Federal judges don’t have a mandatory retirement age and aren’t obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there’s no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court’s ideological bent during his second term.

Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it’s plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

“I wouldn’t call that math. I’d call that informed speculation,” he cautioned. “It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable.”


The 5th Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits.

University of Houston Law Center professor David Dow, who clerked for 5th Circuit Judge Carolyn Dineen King in the mid-1980s, said judges’ decisions are guided by Supreme Court precedent and statutory language far more than their personal ideology.

“There’s frequently room for people to disagree on what a statute means, but there’s usually not a wide range of disagreement,” he said. “The significance of ideology in most cases can be overstated.”

Dow, who founded the Texas Innocence Network and has represented more than 100 death row inmates in state and federal appeals, estimated that 95 percent of the cases on the 5th Circuit’s docket would be decided the same way no matter which direction the court leans.

I can think of one decision that might have been different with an alternate cast of characters in place. I don’t know much about the justices on the Fifth Circuit Court, but one that I do know is Edith Jones, the previous Chief Justice, who will turn 65 and thus become eligible for senior status in 2014. Jones was the author of that opinion I cited, and if you were to ask me which one justice for whom I’d like to see President Obama appoint a replacement, it would be her. Beyond that, any extra diversity of background and experience – perhaps David Dow would like to don the robes – would be appreciated.

Obama has nominated 42 circuit court judges and has had 30 confirmed as of early December, according to Wheeler. He said Obama’s confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed.

Wheeler sees signs that Obama is poised to pick up the pace of his judicial nominations. The White House has submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies, he said.

“He may be gearing up to go for broke in his second term,” Wheeler added.

To which I say, “about damn time”. Obama’s seeming lack of urgency in making judicial nominations was something for which he received a fair amount of well-deserved criticism during his first term, though Republican obstruction has been a big factor as well. If he plans to spend the next four years making up for lost time, that would be a fine thing.

UPDATE: I wasn’t aware when I wrote this that Ted Cruz is now on the Senate Judiciary Committee, where he joins John Cornyn. Cornyn has not been obstructive to Obama‚Äôs district court appointments in Texas, but this is different, and I don’t have any reason to expect that Cruz will play nice. So let’s just say this is more complicated than I originally thought.

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2 Responses to Remake the Fifth Circuit!

  1. Big Dave says:

    Interesting post. Just FYI, the members of this Court are properly referred to as “Judges” or the “Chief Judge”, not “Justices”.

  2. Pingback: Complaints filed against federal judge Edith Jones – Off the Kuff

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