Thanks to everyone who responded to our request for gossip about possible Fifth Circuit judicial nominations. Your tips were very helpful to us, as was this piece in the Texas Lawyer.
(And thanks to Peter Harrell, a current law student and former political reporter for Congressional Quarterly, for this insightful comment. A good point. With respect to some judicial nominees, the Democrats will probably try “killing them softly,” with procedural mechanisms. But the Dems should be careful. If they do TOO much of this, they will look obstructionist. And Pelosi and pals are saying that they’re in D.C. to get things done.)
Anyway, re: the 5th Circuit, this is what we’re hearing:
1. There are two Texas seats on the Fifth Circuit to fill: those of Judge Patrick Higginbotham and Judge Harold DeMoss. (For the vacant Mississippi seat, Michael Wallace is the White House’s pick; but he doesn’t seem to be going anywhere right now.)
2. A package deal of two nominees is likely. One would be a so-called “diversity pick,” i.e., a minority or a woman, and one would be a “regular” pick.
(Some Senate Republicans are not thrilled about the idea of a diversity pick. But the Democrats taking over the Senate next year, diversity picks will probably only increase.)
3. For the “diversity” seat, the leading candidates are two Texas state court judges: Justice George C. Hanks, Jr., an African-American appeals court judge; and Judge Jennifer W. Elrod, a well-regarded trial court judge.
(Yes, Judge Elrod is quite attractive — in a perky, “Jennifer Aniston” sort of way. But please do not confuse her with Jennifer Elrod, “Famous Centerfold and Celebrity.” Judge Elrod uses that middle initial for a reason.)
4. For the “regular” seat, the process right now is focused upon two individuals: Judge Sidney A. Fitzwater (N.D. Tex.), a Reagan appointee to the federal trial bench, and Gregory S. Coleman, a partner in the Austin office of Weil, Gotshal & Manges.
5. A grab bag of other possibilities, but not as likely as the four just mentioned: Judge David Godbey (N.D. Tex.); Judge Jane Boyle (N.D. Tex.); Judge Lee H. Rosenthal (S.D. Tex., and a woman); Chief Justice Wallace Jefferson, of the Texas Supreme Court; Justice Jane Bland, of the Texas First Court of Appeals; Texas Solicitor General R. Ted Cruz; and Professor Ernest A. Young, of the University of Texas School of Law (Austin).
These are the basics. If you’re a real judicial junkie, check out our additional observations, after the jump.
More random observations:
6. Both Justice George Hanks and Judge Jennifer Elrod, the current top contenders for the “diversity” seat, would probably be unobjectionable to the Senate. They are believed to be reasonably conservative, but not insanely so. And considering that the Fifth Circuit is already one of the most conservative circuits in the country (if not THE most conservative), it would take a lot to move the court rightward.
7. Gregory Coleman, one of the leading choices for the “regular” seat, has amazing credentials. Currently he’s the head of Weil Gotshal’s appellate and Supreme Court practice, based out of Austin, Texas. Previously he served as Solicitor General of Texas. As a former law clerk to Judge Edith Jones and Justice Clarence Thomas, the Fifth Circuit “would be a homecoming for Greg Coleman.”
8. Judge Sidney Fitzwater, the other strong candidate for that seat, could be a tougher sell to a Democratic Senate.
Judge Fitzwater is “a darling in Republican circles,” which explains “how he got put on the bench so young” (at age 32 — yikes!). And he “gave [presidential nephew] George P. Bush a clerkship just for this occasion.”
But Democratic Senators will probably not be thrilled to learn about these allegations:
When he was a young Republican party activist, Sidney Fitzwater allegedly engaged in some voter intimidation in black neighborhoods. This came out at his first confirmation hearing. Most everyone agrees that he was just a kid, just following orders, but that’s not going to save him this time.
Judge Fitzwater can try to point to the sterling reputation he has developed on the district court, where attorneys praise him as an “outstanding judge” who “should be cloned.” But we have a feeling that the Democrats would get their undergarments in a wad over the voter intimidation allegations. And even if these accusations weren’t enough to stop him from getting appointed to the Northern District of Texas, the Fifth Circuit may be a whole different matter.
Update: From a tipster, a bit more about how Judge Fitzwater addressed these allegations at his hearing for his district court appointment:
Sid Fitzwater was questioned about the alleged voter intimidation during his confirmation hearing, where he apologized, saying he “did not study the signs and drew no conclusions from the fact that he was asked to place them only in Black areas of South Dallas.”
Howard Kurtz, Two Judicial Choices Assailed; Liberals Say Both Have Tried to Impede Minority Voting, The Washington Post, 5 Feb. 1986, A4; Judy Wiessler, Judicial Nominee Defends Activities of 1982 Election, Houston Chronicle, 6 Feb. 1986, 1-3.
9. Some observations on the outside possibilities:
(a) Judge Lee Rosenthal: “She’s widely regarded as the smartest district judge in the circuit and she’s a really nice lady. She is very conservative, but, conveniently, she has a reputation among some as too liberal. The perfect stealth candidate? Politics aside, she’s the best of the bunch and most everyone on the Fifth Circuit is rooting for her. Of course, there’s already plenty of competition among the women of the Fifth Circuit for next-in-line to SCOTUS.”
(b) R. Ted Cruz: “He was the top pick before the Senate changed hands. It’s hard to believe someone this conservative could make it past Leahy. But this brilliant, young Hispanic has to be Bush’s dream nominee.”
(c) Professor Ernest Young: “A dark horse, to be sure, but the plainly the best academic pick. He’s a professor at UT law school who turned down an offer from Harvard law just this year. A Boudin/Souter clerk who wears a bow-tie, he’s young, handsome, and very confirmable. He would be a reliable conservative judge, but is charming and qualified enough to sail through the Senate.”
10. Two outside, outside picks:
(a) White House Counsel Harriet Miers: “OMG!!! Now wouldn’t THAT be fun? We miss Harriet. For her loyal service to the president, and after suffering through a disastrous Supreme Court nomination, the old girl clearly deserves SOMETHING.”
(b) Attorney General Alberto R. Gonzales: “He’s probably already drafted a memo arguing that Article II grants the president power to self-advise and self-consent. He’s going to need it!”
Election Results Could Temper Bush’s 5th Circuit Picks [Texas Lawyer via Law.com (pass-through link)]