FACT SHEET: Packing the Fifth Circuit

The United States Court of Appeals for the Fifth Circuit was once at the vanguard of protecting the rights of ordinary Americans.  Courageous judges, both Republican and Democratic appointees, on the court issued opinions enforcing civil rights protections at great personal risk.  They were not driven by personal biases but by an unflinching belief in justice.  Ultraconservatives, however, waged an unrelenting courtpacking campaign, and now this court is a bastion of conservative activism.

Partisan Engineering

During the Clinton administration, the Republican Senate blocked two moderate nominees to the court to hold seats open for the next president.  For one of the seats, President Clinton first submitted a nominee in mid-1997; for the other he submitted a nominee in early 1999. Both nominations languished for several years before expiring at the end of Clinton’s presidency.

Norman Ornstein, a scholar at the American Enterprise Institute, observed about the Clinton years: “Dozens of judicial nominees… were denied hearings, in some cases for four or five years, not on the basis of any charge that they were ideologically extreme or unqualified, but rather because they represented slots on important courts, worth keeping open in case the next president turned out to be a Republican.”

• Benefiting from this obstructionism, President George W. Bush exploited the opportunity to pack the Fifth Circuit with  five judges hostile to civil rights, including the highly controversial Leslie Southwick and Priscilla Owen. 
• After the opposition to his nomination of ultraconservative ideologues, President Bush began nominating Republican loyalists with records that were silent on their judicial philosophy in order to eliminate obstacles to his courtpacking agenda.

The Fifth Circuit By The Numbers

• 12 out of 16 active judges, 75% of the bench, are Republican-appointed.
• George W. Bush has appointed 6 people to the Fifth Circuit, including 5 judges appointed for life (the sixth, Charles Pickering, was appointed during a Senate recess after being rejected by the Senate Judicary Committee and then successfully filibustered, and therefore could not serve past the end of the next Congressional session).  Former state judge Catharina Haynes has been nominated for the last open seat.   Even if Haynes is not confirmed, President Bush has appointed almost 1/3 of the Fifth Circuit.
• At 45%, the Fifth Circuit has the highest percentage of minority residents of any circuit in the country.  The Fifth Circuit’s bench, however, has only 4 non-white judges. 7 out of 8 of George W. Bush’s nominees were white.

Troubling Leadership

• Reagan-appointee Edith Jones recently became Chief Judge of the Fifth Circuit. She has referred to the Supreme Court’s seminal rulings as “the debacles of the 20th century.”  She has voted to strike down parts of federal laws: protecting school children and state workers with disabilities; outlawing robbery, car bombing and murder-for-hire; and banning machine guns.  Frequently reversed by the Supreme Court, she has held that a sleeping lawyer provided effective assistance of counsel to a defendant in a criminal case, brushed aside stark evidence of racial discrimination in jury selection, displayed open hostility to sexual harassment claims, voted consistently to weaken anti-discrimination law and refused to recognize a constitutional right to bodily integrity that would protect public school children from being sexually abused by their teachers.

George W. Bush’s Nominees: A Snapshot

• Edith Brown Clement: Judge Clement has lived up to all expectations that she “would enthusiastically support the federalism revolution.”   She has a demonstrated willingness to go further than the Supreme Court or any appeals court in curbing federal authority to address issues of national importance.  Her views threaten public and workplace safety regulations and civil rights protections.  She was confirmed in 2001.
• Edward Charles Prado: Though viewed as a moderate on criminal justice issues, Judge Prado’s record reveals a crabbed interpretation of rights under the Americans with Disabilities Act, as well as a begrudging attitude towards civil rights actions.  He was confirmed in 2003.
• Priscilla Richman Owen: A staunch ideological conservative, Judge Owen’s record shows hostility toward consumer and workers’ rights, as well as reproductive rights.  Newspapers that initially supported her candidacy for the Texas Supreme Court balked at her nomination to the federal bench, observing that “her record demonstrates a results-oriented streak that belies supporters’ claims that she strictly follows the law” and she is “less interest[ed] in impartially interpreting the law than in pushing an agenda.”  ,  She was confirmed in 2005 as part of the brokered “Gang of 14” deal.
• Leslie H. Southwick: On the Mississippi Court of Appeals, Judge Southwick voted against the interests of workers and consumers 89% of the time in divided decisions.  His decisions involving racism in the workplace, women’s property rights following the dissolution of a relationship, and allegations of bias against the defendant in juror discrimination cases raise considerable questions about his commitment to equal justice.  He was confirmed in 2007.
• Jennifer Walker Elrod: Judge Elrod lacks experience that qualifies her for a lifetime seat on a federal appeals court.  The short orders she issued during her time on the Harris County District Court in Texas contained no discussion of substantive law, and she had no record on significant issues of constitutional and federal statutory law regularly confronted by federal appeals courts.  She also attempted to buck the Senate’s advice and consent role in the confirmation process, refusing to provide materials, including speeches made to political groups during her time as a Republican judicial candidate, to the Committee.  She was confirmed in 2007.
• Catherina Haynes: Her nomination sparks a sense of déjà vu, given the similarities to Judge Elrod’s nomination.  Judge Haynes also possesses a thin record, and the materials she provided to the Senate Judiciary Committee gave no insight into her legal views or judicial temperament.  Judge Haynes has not affirmatively demonstrated her commitment to equal justice for all, nor has she shown sufficient legal experience to handle the docket of a federal appeals court.  Her nomination is pending with a hearing scheduled before the Senate Judiciary Committee during a Senate recess on February 21, 2008.

The Effects

Ultraconservative efforts to pack the Fifth Circuit have paid off.  The once-venerated court now is one to be avoided for those asserting their civil rights, raising sexual harassment claims or challenging death penalty sentences.  Recently, a panel of Fifth Circuit judges denied Katrina victims relief, ruling instead that any ambiguities in a policy’s language should be resolved in favor of large insurance companies, rather than the policy-holders whose homes had been destroyed. 

» WHAT YOU CAN DO: Tell Your Senator to Say NO to Catharina Haynes