Five From the 5th Circuit Mentioned for High Court

By Lois Romano
Washington Post Staff Writer
Tuesday, July 19, 2005

It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.

But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land -- but it is still at the center of politics and history.

As both sides dig in for what is expected to a be contentious ideological struggle over a successor to Sandra Day O'Connor on the Supreme Court, five of the judges mentioned as possible nominees are on the 5th Circuit: Edith Brown Clement, Emilio M. Garza, Edith Hollan Jones, Priscilla R. Owen and Edward C. Prado.

"A court is made up of more that just individual judges. It has a tone or a mood. The fact that the president is looking at so many judges from the 5th Circuit tells us more or less what he may be looking for," said University of Pittsburgh law professor Arthur D. Hellman. "He may not want just a conservative judge, but one that comes from a conservative environment and is more likely to think in those terms."

The five judges will face varying degrees of opposition. Democrats say two, Jones and Garza, are unacceptable because the judges have denounced Roe v. Wade , the 1973 decision establishing a woman's right to an abortion. Clement has fewer opinions on social issues to parse, and Prado, who was appointed by Bush, is considered moderate by many Democrats.

The court -- which covers Texas, Mississippi and Louisiana -- is known for its independence, and the Supreme Court has reversed it in a number of high-profile cases. The high court has also openly rebuked the 5th Circuit in death penalty cases, signaling that the appeals court crossed the line in denying defendants' rights.

On one occasion, O'Connor, writing for the majority, accused the lower court of applying its own "restrictive gloss" to the standard set by the Supreme Court for establishing a condemned convict's retardation. In another recent capital case, the Supreme Court reversed the 5th Circuit 6 to 3, stating that the appeals court was wrong not to order a new trial in the face of strong evidence that prosecutors deliberately excluded blacks from the jury. The majority opinion, by Justice David H. Souter, said the 5th Circuit decision was a "dismissive and strained interpretation" of how the Supreme Court had previously ruled.

In that case, some legal analysts said, the high court expressed its frustration because it had sent the same case back to the circuit court two years earlier with an 8 to 1 majority, directing the court to review its decision.

In another key case, the Supreme Court voted unanimously to reverse the 5th Circuit and overturned the conviction of accounting firm Arthur Andersen over jury instructions.

Still, the lower court shows no sign of backing down.

"It really is quite unusual for a lower federal court to thumb its nose at the Supreme Court so explicitly," said Peter B. Edelman, a professor of constitutional law at Georgetown University law school. "If you look at some of the other courts, I doubt you'll find the same kind of flaunting defiance."

Theodore M. Shaw, the director of the NAACP Legal Defense Fund, said it is "extraordinary" how many times the Supreme Court felt it necessary to chastise the 5th Circuit. "We are not talking about a liberal Supreme Court," he noted. "We're talking about a conservative Supreme Court that apparently became frustrated with the 5th Circuit's failure to meaningfully review criminal convictions for constitutional infirmities . . . cases involving prosecutorial misconduct, police misconduct, racial discrimination. Those problems were not being addressed by the 5th Circuit, so the Supreme Court had to step in."

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