Part the 5th. The horrible 5th.
In parts 1-4 of Better Know a Circuit, we looked at the 4th, 7th, DC, and 9th Circuits. President Obama dramatically transformed the 4th and DC Circuits, moved the 9th somewhat leftward, and if Clinton wins, she will have a very good chance to further liberalize the 9th and to move the 7th left as well.
Opportunities are much scarcer than that in the 5th Circuit, part 5 of our series. The 5th Circuit, which covers Texas, Mississippi, and Louisiana (that says a lot right there), is a bonfire of a court that destroys every hope for equal justice its path. It’s not likely to change much any time soon. We can hope to limit the damage and hope the SCOTUS reverses its worst decisions. It will take a few years at least to wrest control from conservatives—though in the span of a Clinton presidency, it is possible. The always-valuable Ian Millhiser sums it up here:
It wasn’t always this way. Back in the Civil Rights era, the 5th Circuit was a liberal court, committed to equality. There were four judges known as the “Fifth Circuit Four” who were deeply committed to advancing civil rights: John Minor Wisdom (the namesake of the courthouse in Louisiana), Elbert Tuttle, John Brown (yes, really), and Richard Rives. Rives was appointed by Truman, the other three by Eisenhower. But time catches up with us all, and eventually they retired, and later died. Decades of conservative appointments made this court from very liberal to very conservative. The days of the 5th Circuit Four are not coming back soon.
Also of note: until the early 1980s, the 5th Circuit was a much larger court, including Alabama, Georgia, Florida, in addition to the other three states. It had 29 judges, same as the 9th Circuit does today. In 1981, the circuit was split. 17 judges would oversee TX, MS, LA and become a reduced-size 5th Circuit, while 12 would oversee the new 11th Circuit of AL, GA, FL. While Obama has managed to move the 11th Circuit back toward the center, no such luck with the 5th.
More below the fold.
The current composition of the court
As Millhiser observes, the court is currently 10-5 Republican, with 2 vacancies (1D,1R). 4 Reagan, 2 Clinton, 6 GW Bush, 3 Obama. I frankly can’t do much better to introduce and discuss the court than Millhiser does, so I’ll begin by elaborating a bit on the cases and judges to whom he refers.
The death penalty case he mentions is Burdine v Johnson, 2001. This was an en banc decision, reversing the 3-judge panel’s decision against the defendant. Burdine had been sentenced to death in 1984, even though his lawyer had indeed slept through the bulk of his trial. That’s a pretty clear-cut ruling in favor of the defendant, yet 5 judges found a way to find he could be sentenced to death anyway. Their names: Edith Jones, Grady Jolly, Jerry Smith (all Reagan), Rhesa Hawkins Barksdale, Emilio Garza (GHW Bush). It’s worth noting here that GW Bush strongly considered both Jones and Garza for SCOTUS, for the seat that ultimately went to Alito. Harry Reid warned Bush that Democrats would filibuster Jones. You should damn well hope they would. Jones is a real piece of work.
Luckily, these crazy authoritarians lost this case, but only because other Republicans deserted them. The decision was written by Fortunato Benavides, a Clinton appointee, and joined by a Carter appointee, 2 Reagan appointees, 2 GHW Bush appointees, and 2 other Clinton appointees.
The rapist case is described here: www.sfgate.com/… That has a bit more resonance in light of the GOP presidential nominee. Just a bit. The panel ruling against the girl and ordering her to pay the school’s legal fees was Garza and GW Bush appointees Edith Brown Clement and Priscilla Owen, both of whom were also considered for SCOTUS by GW Bush. Reid threatened a filibuster of Owen.
More recently, of course, the 5th Circuit ruled against Obama in the immigration case. Conservatives Jerry Smith and Jennifer Elrod first refused to lift district Judge Andrew Hanen’s stay (over the dissent of Obama appointee Stephen Higginson) and then ruled Obama had no authority to implement the program (over the dissent of Carter appointee Carolyn King). Appealing to the en banc court would have been hopeless—and as we know, SCOTUS split 4-4. What’s the message to GOP senators? Obstructionism paid off.
The 5th Circuit upheld the Texas anti-abortion law as well, of course, the one SCOTUS struck down 5-3. The 5th Circuit judges were Edward Prado (not to be confused with racing jockey Edgar Prado), Elrod, and Catharina Haynes. Prado was appointed by GW Bush and considered for SCOTUS also, while the other two were appointed by GW Bush as well.
All of this makes it very surprising when the 5th Circuit rules our way in a big case. That is what happened on gay marriage. We got lucky with the panel—Obama appointee James Graves was on it. He and Jerry Smith of course canceled out, leaving Reagan appointee Patrick Higgenbotham as the key vote. Though a Republican, Higgenbotham is more of an Anthony Kennedy type. Unpredictable. And in this case, he voted for equality, so 2-1, the 5th Circuit legalized equality. We know the rest.
On affirmative action, we got a similar result: Higgenbotham joined King to outvote Garza and uphold it. We know how it ended in SCOTUS.
On birth control, we won—shockingly, the arch-conservative Jerry Smith voted our way and wrote the decision, which tells you how weak the religious fanatics’ case is. Nonetheless, they would have won in SCOTUS had Scalia lived. Joining Smith were Graves and a Carter appointee.
More recently, in July, an en banc panel struck down the Texas voter ID law. Haynes, the GW Bush appointee, wrote the decision. She was joined by Leslie Southwick, also a GW Bush appointee, and Prado. Eugene Davis, also a GOP (Reagan) appointee, joined as well, as did all the Democratic appointees on the panel (3 Obama, 2 Clinton). Dissenting were Jones, Jolly, Smith, Clement, Elrod, Owen.
Of the judges on this court, Edith Jones and Priscilla Owen bear noting in particular. Jones, who joined the court in 1985 at age 36, is particularly vile. She’s pretty much the closest thing to Donald Trump we have on the federal bench. Elizabeth Warren mentions her in her book, noting that Jones argued that people who go bankrupt are a bunch of lazy moochers, in direct contradiction of the truth. But that only scratches the surface. You’ll notice that Jones ruled against justice in every case listed here. She’s a staunch ally of the Federalist Society, of course. In McCorvey v Hill, Jane Roe of Roe v Wade sued to try to have that decision overturned. The 5th Circuit dismissed her suit, ruling she had no grounds to bring the suit, but Jones took the occasion to criticize Roe v Wade in the first place (surprise surprise).
Most gallingly (and here’s where the Trump comparison comes in), Jones is viciously racist. She has expressed the view that blacks and Hispanics are predisposed to violent crime—those were pretty much her exact words. She has endorsed the death penalty as a good thing because it allows an inmate to “make peace with God.” This article from ThinkProgress reveals the following, as well:
She said...that Mexicans would prefer to be on death row in the United States than serving prison terms in other countries.
Jones, a Reagan appointee who was chief judge of the U.S. Court of Appeals for the Fifth Circuit until last October, is known for her hostile and discriminatory comments. She erupted at one of her fellow judges during oral argument in 2011, and told him to “shut up” while asking him to leave the courtroom. And she wrote a dissenting opinion claiming that a woman who “was repeatedly propositioned, was groped and grabbed, [had] pornography  placed in her locker, and [had] other employees broadcast obscene comments about her over the company’s public address system” did not experience sexual harassment. Jones is also one of the most frequent attendees of junkets for judges, corporate-sponsored legal education getaways.
Does any of this sound familiar? Especially in light of current events?
Meanwhile, Priscilla Owen is one of GW Bush’s most conservative judges anywhere. She was filibustered by Dems from 2001-2005, until the Gang of 14 deal allowed for her confirmation. Besides the decisions above where she partook, she’s as anti-abortion as they come, endorsing a *very* strict interpretation of the Texas parental notification law. Some of her views are so far out there that even her conservative colleague on the Texas Supreme Court, a certain Alberto Gonzales who you may have heard of, found them unacceptable. The late, great Senator Ted Kennedy spoke against her here: web.archive.org/…
And here’s a statement from NARAL: web.archive.org/…
President Obama has named three judges to this court. Two have succeeded GHW Bush appointees while one succeeded a Clinton appointee. A modest return toward the center, but woefully inadequate to bring the court back from the dark side. Particularly when one appointee is Gregg Costa, a former prosecutor (prosecuted Ponzi schemer Allen Stanford) who clerked for Raymond Randolph on the DC Circuit and William Rehnquist—two very conservative judges. Costa was appointed a district judge at the recommendation of John Cornyn and Kay Bailey Hutchison. And when Ted Cruz replaced Hutchison? He endorsed Costa’s elevation. This is not the resume of someone likely to be a liberal judge, but we’ll have to see. The conservative law blog Above the Law has guarded praise for him: abovethelaw.com/…
The 5th Circuit is what happens when Republicans control the nominating process. It’s a real disaster. But we can stop the bleeding and begin recovering this November. Right now, there are two vacancies. A third will open by the end of the year when Reagan appointee Davis takes senior status. A Clinton presidency and a Democratic Senate could shift the balance from 10-5 GOP to 9-8 GOP pretty quickly. Given the nature of these judges, that won’t be enough, but it is necessary. Get these seats filled, and wait for other GOP judges to retire. That will take time—but it could happen in the span of a Clinton presidency. Let’s elect her and find out if we can re-commit the 5th Circuit to equal justice under law.