Dateline Houston

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The Associated Press recently described the U.S. 5th Circuit Court of Appeals, which encompasses Texas, Louisiana and Mississippi, as a “corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates.”

Succinct!

But in the next four years, President Obama may have the chance to moderate this most conservative of appeals courts.

Right now, the 5th Circuit has 10 judges appointed by Republican presidents, five by Democratic presidents, and two vacancies. But by 2016, seven of the Republican-nominated judges will have turned 65, making them eligible for “senior status,” a voluntary semi-retirement that would allow Obama to appoint their successors.

This doesn’t guarantee a huge ideological swing for the 5th Circuit. Judges aren’t required to assume senior status—five judges are currently eligible but continue to serve—and some Republican-appointed judges might choose to wait out Obama’s second term before retiring.

That said, it is mathematically possible for the 5th Circuit Court of Appeals to go from two-to-one Republican-appointed judges to four-to-one Democrat-appointed by 2016.

A slim blue majority is more likely. Assuming the president can get his nominees confirmed, Obama needs just two Republican-appointed judges to accept senior status to tip the court’s makeup.

But if any of those seven eligible Republican-appointed judges hang up their robes, the 5th Circuit stands to lose a lot of pizzazz. Here are a few of the eligible judges’ more colorful decisions:

The Honorable Jerry E. Smith (eligible for seniority in 2011) wrote the majority opinion in 1996’s Hopwood v. Texas, ending the University of Texas’ use of affirmative action. He also wrote the panel opinion overturning the EPA’s ban on asbestos in 1991’s Corrosion Proof Fittings v. EPA, which required the EPA, from then on, to do a cost-benefit analysis before banning a toxic substance. (Yeah, why does everyone always talk about the downsides of asbestos?)

The Honorable Edith Brown Clement (eligible this year) joined two other judges in affirming dismissal of a free-speech lawsuit by a high school basketball cheerleader who was kicked off the team for refusing to chant the name of her alleged rapist. But 5th Circuit judges went one better than the lower court. They declared the lawsuit frivolous and ordered the girl to pay her high school $45,000 in legal fees.

George W. Bush appointed the Hon. Leslie Southwick (eligible in 2015) over strenuous objection from gay rights and minority groups who were alarmed by Southwick’s record as a judge on the Mississippi Court of Appeals. In 2000, Southwick joined the majority in reinstating a state social worker who’d been fired for calling a black coworker a “good ole n***er,” a slur characterized by one witness as only “somewhat derogatory” because the social worker was “in effect calling the individual a ‘teacher’s pet.’” In 2001, Southwick joined the court in upholding an award of sole custody to a father because the mother, who had been primary caregiver, was a lesbian.

But by far the greatest loss of 5th Circuit flavor would be if former Chief Judge Edith Jones (eligible in 2014) takes senior status. Once referred to as the “horsewoman of the right-wing apocalypse,” Judge Jones regularly uses irony quotes around the words “rights” and “choice.” She’s a strenuous foe of abortion rights, having upheld Mississippi’s requirement that a minor get permission from both parents to get an abortion, even in a home with documented abuse. And last February, Jones vacated a lower judge’s injunction stopping enforcement of Texas’ mandatory sonogram law, adding that without the Clockwork Orange-like procedure, a woman isn’t “fully informed.”

As the national debate over gun control rages, Texas’s leaders have identified that against which we must all be most vigilant:

An excess of… whimsy.

Yesterday, New York state passed the nation’s most stringent gun-control law. The next blessed day, Texas’s Attorney General, Greg Abbott, had an online ad appearing on New York websites telling law-abiding, gun-totin’ Yankees to come enjoy the “lower taxes and greater opportunity” enjoyed by the Lone Star State.

“We’ll fight like hell to protect your rights,” it actually says, not as a joke. “You’ll also get to keep more of what you earn and use some of that extra money to buy more ammo.”

Eric Bearse, a spokesperson for Abbott, told the Daily Beast that they placed the ad because in Texas, the Constitution is held “sacred” and protects Americans from “whimsical and knee-jerk reactions by political leaders.”

In related news, several writers for late-night talk shows simultaneously punched the air with gratitude. (Not really, but probably.)

Conservatives and public employee unions rarely unite over an issue, but desperation makes strange bedfellows. At the end of 2012, a surprising coalition emerged to support closing some of Texas’ state prisons in the new year.

The union that represents prison guards, the American Federation of State, County and Municipal Employees (AFSCME), has long advocated better pay and conditions to help reduce turnover and ease guard shortages that in some places approach 50 percent. Texas’ prison population has dropped—state Sen. John Whitmire, a Houston Democrat, says the state is now sitting on 10,000 empty beds—and union leaders want to see prisoners consolidated, prisons fully staffed, and the savings from closed units put toward better training and compensation for guards. Fully staffed facilities are less stressful and less dangerous workplaces, besides being more secure. This could help decrease the 20 to 40 percent turnover rate among guards, which the union says wastes millions of dollars in training costs.

Guard shortages are a chronic problem that the Texas Department of Criminal Justice says is worsened by an oil and gas boom that offers wages the Texas prison system can’t top. Union leaders also point out that since the average facility offers a starting salary of $28,000 and no air conditioning, most jobs are more appealing than those in corrections.

Rural units, many built in the early 1990s in the hope of boosting small-town economies, are the hardest to keep staffed. The Connally unit in South Texas closed eight of its dorms last summer because of guard shortages, and two Panhandle penitentiaries relocated some prisoners to other units in December for the same reason, though a TDCJ spokesperson said the move is temporary.

Fiscal conservatives support unit closures because they’re appalled at the expense and recidivism rate of state jails. Originally intended to be a low-cost, rehabilitative alternative to prison for minor offenders, state jails cost almost as much as state prisons and have a far worse recidivism rate. A scathing report from the Texas Public Policy Foundation in November declared, “Unfortunately, state jails are universally failing in their objective,” and called them a “bad deal,” advocating diversion or probation for most jail felons.

Privately run facilities—which were supposed to save money—often exacerbate the expense by charging more per prisoner if the population drops below a certain threshold, preventing savings from policy changes like alternative sentencing.

In December, Sen. Whitmire, chairman of the Senate Criminal Justice Committee, suggested two private units for closure, both run by Corrections Corporation of America. One is Dawson State Jail in downtown Dallas, which an October audit cited for systemic failures in health services, and which has been blamed for horrible inmate deaths from illness and negligence. The other is the Mineral Wells Pre-Parole Transfer Facility west of Fort Worth, which has struggled with contraband, rioting and violence.

“I think it would be pretty convincing to show we’re wasting dollars” on Dawson and Mineral Wells, Whitmire told the Texas Tribune.

Lance Lowry, president of AFSCME Local 3807, put it more strongly in a recent letter to criminal justice blogger Scott Henson.

Explaining his support for closing the Dawson and Mineral Wells facilities, Lowry wrote, “These prisons are extremely dangerous and are only being kept open to satisfy the greed of the private prison industry.”

The renewed debate over gun control has lately settled into two broad camps: those who think more guns in the right hands would reduce violence, and those who think fewer guns overall would reduce violence.

Texas politicians, predictably, have come out in favor of more guns, particularly in the hands of schoolteachers: Gov. Rick Perry, state Rep.-elect Jason Villalba of Dallas, Texas Land Commissioner Jerry Patterson, and suburban Houston’s own state Rep. Debbie Riddle all support arming teachers. This morning, NRA executive Wayne LaPierre held a press conference calling for armed guards in schools, neglecting to mention that Columbine High School had an armed guard and that Fort Hood had a great many armed personnel present. (And, as an apparent Christmas gift to the Internet, LaPierre blamed violence on hurricanes and video games like Mortal Kombat, which features ninjas and fireballs but no guns.)

But the more-guns argument is predicated on the belief that non-criminal citizens with guns can be relied upon to secure their weapons and use them safely. Otherwise, why would you introduce a gun for every 20 or 30 kids in a school, right?

Looking back on the Houston area’s year in firearms casts doubt on that assumption. A few illustrative selections from Dateline Houston’s files:

March 22: A man in Jacinto City killed himself accidentally when one of the shots he fired in the air hit him in the neck.

June 13: A 17-year-old boy in Alamo died when a bullet he fired at a butane tank ricocheted and hit his head.

June 17: A 24-year-old woman in south Houston was killed when her brother accidentally dropped the gun he was carrying.

July 31: A 12-year-old boy in Waller County accidentally shot and killed his 11-year-old brother with a 12-gauge shotgun after finding it and another shotgun in their parents’ closet. The parents thought the closet was locked.

November 13: A young man in southeast Houston died after he and a neighbor were comparing their guns and one gun accidentally discharged.

Dec 12: A 4-year-old boy in northeast Houston shot himself after climbing on top of his parents’ tall furniture chest and finding a gun kept there for home security. Both parents were home and thought the child was in bed.

Then there are the situations that might not have ended in death if guns hadn’t been present.

Yesterday, a 20-year-old man allegedly shot and killed a 30-year-old woman during a road-rage confrontation in far southwest Harris County.

And on Dec 11, a 17-year-old died after being shot by his neighbor during an argument over sneakers.

One could go on.

As our politicians lather up their arguments about how guns make us safer, Dateline Houston hopes they’ll remember how things work in real life, not just in the black-hat-white-hat world they imagine.