FedSoc Blog

Will Obama Reshape the “Conservative” 5th Circuit?


by Publius
Posted December 27, 2012, 6:48 PM

The AP reports:

The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation's most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.

Federal judges don't have a mandatory retirement age and aren't obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there's no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological bent during his second term.

Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it's plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

"I wouldn't call that math. I'd call that informed speculation," he cautioned. "It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable."

A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. And, practically speaking, Senate rules allow any senator to prevent a confirmation vote on a nominee.

Judges aren't immune from basing their retirement decisions on political considerations, so the 5th Circuit's Republican-nominated judges may be inclined to wait out Obama's second term before vacating their seats.

"Some (judges) don't consider it at all," Wheeler said of timing. "For others, it's an important consideration."

Two judges nominated by Obama already serve on the 5th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents.

The 5th Circuit is one of 13 federal circuit courts. Obama has made a deeper imprint on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.

"It's a little early to tell, but there's a feeling (the 4th Circuit) is not as conservative as it was and has shifted away from that conservative reputation," University of Richmond law professor Carl Tobias said. . . .


Categories: External Articles




Originally Speaking Debate Archive

Blog Roll