Filling Seats on the Fifth Circuit

September 22, 2014

fifth circuit court of appeals buildingThe New York Times recently reported on the impact President Obama has had on the federal appellate courts, noting that—whereas just one of the circuits had a majority of Democrat-appointed judges when Obama took office—now nine of the 13 circuits have a Democrat-appointed majority. The NYT article also notes that the Fifth Circuit  is one of the four remaining Republican-majority circuits, and the only circuit with two vacancies.

The Fifth Circuit has 17 seats spread across Texas, Louisiana, and Mississippi. Of the 15 judges currently on the bench, 10 were appointed by Republican presidents and five by Democrats—so even if Obama fills the two vacant seats before he leaves office, the Republican appointees will still hold a 10-7 majority. Unless, of course, more seats become available. The longest-sitting judges on the Circuit are the four remaining Reagan appointees—Judge Grady Jolly (1982), Judge Eugene Davis (1983), Judge Edith Jones (1985), and Judge Jerry Smith (1987). Jolly and Davis are both well into their 70s, and Jones and Smith are both over 65, and thus eligible for senior status. But it’s safe to assume that all four of these judges will hold out for a possible Republican president in 2016, before they retire. So it probably won’t be Obama who turns the Fifth Circuit blue.

The two current vacancies were created when Judge Emilio Garza took senior status in 2012, and when Judge Carolyn Dineen King took senior status in 2013. Garza—who was once considered a potential Republican nominee to the U.S. Supreme Court—sat in San Antonio, and King sat in Houston, so presumably their replacements will both come from Texas.

Interestingly, though these vacancies have been deemed “judicial emergencies” (any vacancy on a court of appeals where there are over 700 filings per panel), Obama hasn’t nominated anyone to fill them yet. I’m no insider and I don’t know the real reason—but one might speculate that this is because (a) Texas’s staunch Republican senators, John Cornyn and Ted Cruz, haven’t proposed any candidates, (b) there aren’t a lot of prominent Democrat-friendly candidates in Texas to begin with, and (c) the Obama Administration is unsure about its ability to get a nominee past the two Texas senators, if the nomination isn’t their idea in the first place. In six years, Obama has managed only one Texan appointment to the Fifth Circuit—Judge Greg Costa, earlier this year—and Costa had been originally recommended for the federal district court in 2011 by Senator Cornyn and then-Senator Kay Bailey Hutchison, and was confirmed to that seat by a 97-2 vote in 2012. After that, it wasn’t much of a stretch to put him up for the Fifth Circuit in December 2013.

Assuming Cornyn and Cruz are willing to cooperate, the big question is who Obama might consider to fill these vacancies. Last year, when Costa was nominated, two other district court judges—Judge Xavier Rodriguez of the Western District of Texas (who was actually appointed to the district court by President Bush) and Judge Marina Garcia Marmolejo of the Southern District of Texas—were also reportedly vetted for possible nomination. But, for whatever reason, those two haven’t been nominated. Assuming Rodriguez and Marmolejo are no longer candidates, who else might Obama consider?

I have no inside information. But if the Obama Administration were to consider any of the other Democrat-appointed federal district court judges in Texas (besides Marmolejo)—who aren’t too old for consideration—that list would include Judge David Guaderrama (who, like Costa, was appointed to the district court by Obama in 2012); Judge Diana Saldana (who, like Costa, was recommended for the bench by Cornyn and Hutchison); Judge Nelva Ramos (whose district-court nomination was also supported by Cornyn and Hutchison); and Judge Rodney Gilstrap (also appointed by Obama).

But what about candidates who aren’t already judges? I’m sure there are a few law professors at Texas’s nine law schools who might make good candidates. Again, I have no inside information. In fact, I don’t really even have any well-founded speculation about who these non-judge candidates might be. But it does occur to me that there’s at least one interesting non-judge, Democrat-friendly candidate out there.

What about Wendy Davis? I have no idea whether she’s interested in being on the bench, but Davis graduated from Harvard law and clerked for a federal judge, and has litigation experience in private practice. Also, some people who have been affiliated with the Obama Administration have indicated an interest in picking judges with political backgrounds. (That’s why people like Deval Patrick have been identified as possible Obama picks for the Supreme Court.) I certainly don’t mean to jinx Davis’s candidacy for governor—but if Davis loses that race, it seems to me she could make for an interesting, high-profile pick for the judiciary. But of course, that brings us back to Senators Cornyn and Cruz . . . .