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Five From the 5th Circuit Mentioned for High Court
Others suggest that too much can be read into the high court's reversals and reprimands. "Reversals are overrated," said John S. Baker Jr., who teaches criminal law at Louisiana State University. "A court should follow Supreme Court rulings as precedent dictates. But there can be a value in a judge adding a viewpoint that encourages the Supreme Court to reconsider the issue."
Tom Fitton, president of Judicial Watch, a conservative watchdog group, said of the death penalty reversals: "It tells me the Supreme Court is to the left of the majority of Americans, which favor the death penalty. The 5th Circuit's rulings reflect the majority."
Of the five judges mentioned for the Supreme Court, Jones, 56, is considered by lawyers who practice before the 5th Circuit to be the most intellectual, the most abrasive and the most ideological. Although she is a favorite of the Christian right, both Democrats and Republicans question whether Bush would risk the inevitable Senate fight if he nominated her.
In an opinion last year, she criticized the Supreme Court on Roe , writing: "The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy . . . is that the facts no longer matter. This is a peculiar outcome for a court so committed to 'life' that it struggles with the particular facts of dozens of death penalty cases each year."
Both Jones and Garza, 57, were serious Supreme Court candidates for Bush's father, President George H.W. Bush. Jones was interviewed for the appointment that went to Souter, and Garza was brought to Bush's home in Maine to interview for the seat that went to Clarence Thomas. This go-round, some conservatives have pushed Garza instead of the president's friend and attorney general, Alberto R. Gonzales, if the president wants to appoint the first Hispanic to the court.
Clement, 57, is considered conservative but has not left much of a paper trail. Lawyers interviewed for the Almanac of the Federal Judiciary described her while a district judge as pro-government, pro-business and pro-defendant in civil cases.
Democrats consider Prado, 58, to have an even temperament and a balanced approach to the law. As a district judge, he once overturned a death sentence and ruled that background checks for handgun purchases did not violate the Constitution. Democratic lawmakers who met with Bush to discuss the court reportedly told him that Prado could be confirmed.
Legal scholars have been studying the ideological change in the 5th Circuit, which they pinpoint to 1981, when President Ronald Reagan committed to appointing conservative judges.
In his 1981 book "Unlikely Heroes," writer Jack Bass described how a group of four legendary judges dominated the court in the 1950s and '60s, aggressively interpreting the Supreme Court's civil rights rulings to accelerate racial equality in a resistant South.
The 5th Circuit of today is made up of 16 active judges, 12 of whom were appointed by Republican presidents. Because it covers Texas -- which has the highest execution rate in the country -- the court sees a lot of death penalty appeals. Most frustrating to foes of the death penalty and to civil rights lawyers is that the court has a record of rarely siding with defendants.
Last year, even conservative lawyers paused when a three-member panel of the court ruled 2 to 1 that a death penalty defendant was not entitled to a new trial even though his attorney had slept through part of his trial. "It would seem to anyone in support of the death penalty that a defense attorney ought not sleep through a trial," Shaw said.
The majority, which included Jones, wrote that it "cannot determine whether [the defense attorney] slept during a 'critical stage' " of the trial. When the full 5th Circuit reviewed the decision, the court reversed itself.
"It is not a happy place for civil rights lawyers to be," said Mary Howell, a lawyer in New Orleans who has argued before the court. "For many of us, practicing before the court means avoidance. What's unfortunate is that lawyers are becoming very selective about which cases they chose to take to the court, and many cases that have merit don't make the cut. It has had a chilling effect."
Staff writer Peter Baker and research editor Lucy Shackelford contributed to this report.