Could the Fifth Circuit Appeals Court Turn Blue?


A version of this story ran in the February 2013 issue.

Seal of the United States Court of Appeal for the Fifth Circuit.
Seal of the United States Court of Appeal for the Fifth Circuit.

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.”


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.”