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."
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.