It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.
But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land -- but it is still at the center of politics and history. As both sides dig in for what is expected to a be contentious ideological struggle over a successor to Sandra Day O'Connor on the Supreme Court, five of the judges mentioned as possible nominees are on the 5th Circuit: Edith Brown Clement, Emilio M. Garza, Edith Hollan Jones, Priscilla R. Owen and Edward C. Prado.
"A court is made up of more that just individual judges. It has a tone or a mood. The fact that the president is looking at so many judges from the 5th Circuit tells us more or less what he may be looking for," said University of Pittsburgh law professor Arthur D. Hellman. "He may not want just a conservative judge, but one that comes from a conservative environment and is more likely to think in those terms."
The five judges will face varying degrees of opposition. Democrats say two, Jones and Garza, are unacceptable because the judges have denounced Roe v. Wade , the 1973 decision establishing a woman's right to an abortion. Clement has fewer opinions on social issues to parse, and Prado, who was appointed by Bush, is considered moderate by many Democrats.
The court -- which covers Texas, Mississippi and Louisiana -- is known for its independence, and the Supreme Court has reversed it in a number of high-profile cases. The high court has also openly rebuked the 5th Circuit in death penalty cases, signaling that the appeals court crossed the line in denying defendants' rights. [...] Theodore M. Shaw, the director of the NAACP Legal Defense Fund, said it is "extraordinary" how many times the Supreme Court felt it necessary to chastise the 5th Circuit. "We are not talking about a liberal Supreme Court," he noted. "We're talking about a conservative Supreme Court that apparently became frustrated with the 5th Circuit's failure to meaningfully review criminal convictions for constitutional infirmities . . . cases involving prosecutorial misconduct, police misconduct, racial discrimination. Those problems were not being addressed by the 5th Circuit, so the Supreme Court had to step in."
I wonder how it works when someone gets elevated to the Court when it's on record that the people they're going to work with have little regard for their opinions.
I wouldn't think that Priscilla Owen is seriously being considered by the White House for the Supreme Court. The fight they had to get her onto the Circuit court would be as nothing compared to the fight they'd have over her for the Supreme Court. (The White House argument that, having confirmed her for the circuit, the Senate could hardly refuse to confirm her for the Supreme Court doesn't quite work; the Senate Democrats only confirmed her as part of that terribly ill-advised filibuster deal, and the Supreme Court was specifically excepted.) Prado is unlikely, since the Democrats have informed Bush that he could be confirmed. That leaves Jones, Garza and Clement. One so conservative that the Democrats would fight back hard if Bush pushed her forward, one who could become the first Hispanic on the court -- and who seems to believe in upholding previous Court decisions even when he doesn't much like it; one with almost no paper trail whatsoever.
The questions are: how much of a fight does Bush really want? how much does he want to make history? how devoted to his friend Alberto Gonzales is he, and how much does he want his friend on the court? is there any sense that, given that O'Connor was the first woman on the court, her seat should also go to a woman? (Note that, although everyone denied that it was a factor, there was tremendous pressure to make certain that Thurgood Marshall was succeeded by another black. Note also that, with Ginzburg on the Court, there will be much less pressure in that direction over O'Connor's seat. Unfortunately, Bush can't go for the two-fer by selecting an Hispanic woman; there don't seem to be any at the appropriate levels -- state supreme court or federal circuit of appeals -- under consideration.)
And, of course, how much does the administration need or want the confirmation to distract from the Karl Rove Follies of 2005? A relatively uncontroversial nominee, like Prado or perhaps Clement, will not sufficiently distract either Congress or the press.
Yes, an entertaining summer is ahead for all ... once Our Glorious Shrub gets around to making his decision.Posted by iain at July 19, 2005 11:27 AM