Obama could reshape 5th Circuit during 2nd term

Judges aren’t immune from basing their retirements on political considerations

By Michael Kunzelman
Associated Press

NEW ORLEANS (AP) — 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.

However, Tobias said tallying up the number of Democratic- and Republican-nominated judges would be a “crude instrument” for assessing a court’s ideological leanings.

“Judges are not automatons,” he added.

Case in point: When the U.S. Supreme Court considered the constitutionality of the Obama health care law’s individual mandate, Chief Justice John Roberts, who was nominated by George W. Bush, sided with the Democratic-nominated justices in upholding the law.

The 5th Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits.

University of Houston Law Center professor David Dow, who clerked for 5th Circuit Judge Carolyn Dineen King in the mid-1980s, said judges’ decisions are guided by Supreme Court precedent and statutory language far more than their personal ideology.

“There’s frequently room for people to disagree on what a statute means, but there’s usually not a wide range of disagreement,” he said. “The significance of ideology in most cases can be overstated.”

Dow, who founded the Texas Innocence Network and has represented more than 100 death row inmates in state and federal appeals, estimated that 95 percent of the cases on the 5th Circuit’s docket would be decided the same way no matter which direction the court leans.

Even if Obama is able to fill several 5th Circuit seats, legal experts doubt he would try to stack the court with liberal-leaning judges. Sheldon Goldman, a University of Massachusetts at Amherst political science professor who has studied the politics of judicial selection, said he would expect Obama to nominate candidates with centrist credentials to avoid opposition from Republican senators who could hold up the

“A moderate is the best any Republican can hope for from the Obama administration,” he said.

Obama has nominated 42 circuit court judges and has had 30 confirmed as of early December, according to Wheeler. He said Obama’s confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed.

Wheeler sees signs that Obama is poised to pick up the pace of his judicial nominations. The White House has submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies, he said.

“He may be gearing up to go for broke in his second term,” Wheeler added.