Comparing the Credentials Of Three Decades of Fifth Circuit Nominees

I think we should just be candid about Todd Butler’s nomination to the Fifth Circuit. He has done nothing to prove his conservatism, despite what his conservative friends have said. Being a member of multiple bar associations is almost definitive proof that he is not conservative. I just did a quick scan through the Capital Area Bar Association from Jackson and found numerous DEI programs–yes, even in Mississippi. Butler had nearly two decades to perform pro bono work for a conservative public interest firm, but he didn’t. He could have served in government, but he didn’t. Again, we should just be candid. He was selected because the White House accepted some sort of political deal involving Judge Southwick and Senator Wicker.

Forget judicial philosophy for a minute. How does Todd Butler’s record compare with that of the other members of the Fifth Circuit? I’ll put the bottom line up front: over the past three decades, every nominee to the Fifth Circuit had either government service or extensive experience doing public interest litigation. Lawyers in private practice often inquire about federal judicial appointments, and they are frequently told to get some government experience first. This is something people understand, but the rule does seem to have an exception when the price is right.

Both of the Biden nominees, Judges Douglas and Carrillo Ramirez, previously served as federal magistrate judges.

The Trump appointees had a wide range of government service. Judge Willett served on the Texas Supreme Court, in the Texas Attorney General’s Office, and in the Bush Administration. Judge Ho served as Texas Solicitor General and served as counsel to Senator Cornyn. Judge Duncan worked in the Louisiana Attorney General’s Office, the Texas Solicitor General’s Office and was a litigator at the Becket Fund. Judge Engelhardt served on the federal district court. Judge Oldham worked in the Texas Attorney General’s Office and was counselor to the Governor. Judge Corey Wilson served in the Mississippi Court of Appeals and in the Mississippi House of Representatives. The newest nominee, Judge St. John had a (brief) stint on the federal district court, but spent nearly a decade working for the Hamilton-Lincoln Law Institute and before that the Center for Class Action Fairness at the Competitive Enterprise Institute. (St. John was one of my lawyers in the almost-landmark case of Blackman v. Gascho.)

Now, the Obama nominees. Judge Graves served on the Mississippi Supreme Court and Judge Higginson was an Assistant United States Attorney and later served as chief of appeals in EDLA.

The George W. Bush nominees had extensive public service. Chief Judge Elrod served as a trial court judge in Houston. Judge Southwick was a district court judge, before that served on the Mississippi Court of Appeals, and was a JAG. Judge Richman (formerly Owen) served on the Texas Supreme Court. Judge Clement was a federal district court judge. Judge Haynes was a trial court judge in Dallas.

Same for the Clinton nominees. Judge Dennis served on the Louisiana Court of Appeals and later the Louisiana Supreme Court. Judge Stewart also served on the Louisiana Court of Appeals.

By any objective measure, Butler does not fit the mold of the prior Trump appointees in term of judicial philosophy. He certainly does not fit the mold of three decades of Fifth Circuit nominees across five presidencies. They all had prior government service or public interest experience. (And no, clerking does not count.)

Let’s just be candid about what we have here: a sordid Senate deal to convey a hereditary sinecure.

I understand Butler’s confirmation hearing is scheduled for after the midterms, assuming the nomination is not withdrawn beforehand.

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