Some Fifth Circuit Scuttlebutt
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)]
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Comments
I'd hate to lose Elrod or Rosenthal to the 5th circuit. Good trial judges are hard to find. For a compromise, how about putting Rosenthal on the 5th, and Elrod on the Southern District of Texas?
Ernie Young would be an awesome judge
insofar as the fifth circuit being very conservative (if not the most conservative) court of appeals. its actually in the middle (i.e., a moderate court). the most conservative are, if i remember correctly, the first and fourth circuits (the most liberal: 9th (big surprise), and the 2nd and 3rd). See Cass Sunstein's latest book, "Are Judges Political" (i don't have it in front of me). Observations like this are what happens when lawyers rely on anecdotal instead of hard evidence.
If the Fifth Circuit comes in third, behind the First and Fourth Circuits, it certainly qualifies as "one of the most conservative circuits in the country."
But thanks for sharing with us your knowledge of Professor Sunstein's book.
but it doesn't come in third (hence, the word the "middle") that would be four on each side, smart guy. thanks for showing your ignorance.
With Luttig gone, and with Haynes and Boyle unlikely to get confirmed (at least anytime soon), the 4th Circuit is probably going to fall a notch or two in the next ranking.
I haven't read the Sunstein book, but I question whether assessments like this can be made with such mathematical precision. The rankings would depend upon things like the weight you assign to civil vs. criminal cases, how you define "conservative" (economic or social), etc.
But the Fifth Circuit certainly seems conservative on the criminal front. See, e.g., their death penalty jurisprudence (for which they've been slapped around by the Supreme Court, which is itself pretty conservative).
or five or six on one side or five or six on the other . . . in any event, the point is that its a moderate court, not one of the most conservative courts. yeah, alot of the "name" judges on the court are conservative, but it doesn't translate statistically. in any event, i guess iits easy to be a smartass when you're anonymous.
I agree that there are methodological problems with coding of cases. But I think there is still alot of validity to it. It surprised me (esp. because of, as you reference, the USSC's exasperation with their's (and the CCA's) refusal to take instructions on the death penalty). So while I take the stuff (with an admittedly small) grain of salt, I think there is more to it (statisical analyses) than there is to say, me choosing a handful of cases and pointing out a pattern. That's seems more journalistic to me.
Cass Sunstein's book sucks.
and, no doubt, so do you. grow up if you're going to try and post.
What about Justice Dale Wainwright? He's got to be on the list.
I'll second E - Dale Wainwright would be a great pick.
Dale Wainwright? Perhaps he would be a great pick if only to get him off the Texas Supreme Court.
His opinion in F.F.P. Operating Partners, L.P. v. Duenez was nothing short of an embarassment to the bench and bar, and his opinions in Volkswagen of America, Inc. v. Ramirez and Nissan Motor Co. Ltd. v. Armstrong were hardly any better reasoned.
Justice Wainwright has already been promoted beyond his meager abilities. Should he really be advanced any further? Any discussion of Wainwright's judicial future must begin (and end) with a discussion of the grossly result-oriented judicial flip-flop at the heart of his recent Duenez opinion.
FYI, I referenced your post and asked readers on my blog what they knew about these possible nominees. See the responses so far. Best,
Wow, anonymous - not only are you one angry car wreck lawyer, you don't even know enough to know that Brister wrote the "hardly any better reasoned" opinion in Armstrong.
As Wainwright dissented from the original, withdrawn Duenez opinion, he's clearly not a flip-flopper on the issue. Would you rather debate the reasoning and merits of his opinions, or just throw out some insulting language about a good judge?
The commenter who claims that Justice Wainwright's opinion in the Duenez case is obviously a liberal plaintiff lawyer using this site for smear purposes. The Duenez case is very well reasoned and--most importantly for those of us who oppose lawsuit abuse-- upholds one of the most important tort reforms of the last decade: proportionate liability.
As to his crack about Wainwright's supposed "meager abilities", this comment simply tells us we are hearing propaganda from a plaintiff lawyer. In fact, Wainwright is one of the most able and conservative judges on the Texas Supreme Court. The plaintiff commenter needs to stick to TTLA web sites.
I have had to personally deal with Elrod. She is biased in court. She favors attorneys who are her friends--her appointed attorneys. She IGNORES evidence that might hurt her coddled appointed attorneys. She flirts with these attorneys in court: flips her hair, makes little jokes, all the while eyeing her friends to ensure they are entertained. SHE IS PARTIAL. SHE SIGNS ANY ORDER PRESENTED BY HER FRIENDS. SHE HAS A COMPLETE DISREGARD FOR JUSTICE. SHE SHOULD NOT HAVE BEEN NOMINATED TO THE 5TH CIRCUIT.
Not only is Wainwright a decent human being, he is also the complete opposite of a flip-flopper. He continuously sticks to his proverbial guns, no matters the pointless political jabs that follow.