5th Circuit Court of Appeals - Who could leave before 2017?

[badgate]

I was looking at this court on Wiki because it is where the Texas same-sex marriage case is going after today's ruling. So I was curious to see if President Obama could do some "court packing."


Vacancies
There are currently three vacancies.
--Greg Costa (age: 42-43) was nominated last December by President Obama.
--Two vacancies are unfilled.

Possible Retirements
--E Grady Jolly (age: 76); Reagan Appointee; confirmed 1982
--W. Eugene Davis (age-77-78); Reagan Appointee; confirmed 1983
--James L. Dennis (age: 78); Clinton Appointee; confirmed 1995
--Edith Jones (age: 64); Reagan Appointee; confirmed 1985 (young, but has been on the job for a long time so may be looking to move on)

Less Likely Retirements
--Carl E. Stewart (age: 64); Clinton Appointee; confirmed 1994
--Jerry Edwin Smith (age:67); Reagan Appointee; confirmed 1987
--Edward C. Prato (age: 66); Bush 43 Appointee; confirmed 2003
--Edith Brown Clement (age:65); Bush 43 Appointee; confirmed 2001


So the court's current makeup is 10 appointed by Republican Presidents, against 4 appointed by Democratic Presidents, and 3 vacant. If the President gets the three vacancies filled, it's 10-7.

So what do you guys think? If three of the ones I picked as "possible retirements" left with time for Obama to fill them, the court would go 8-9


It's definitely possible that some or all of the Reagan or Bush appointees are going to wait until after 2016 to decide. I hope the old Clinton appointee will retire before then, though.




Senior Judges

--Carolyn Dineen King (age: 76); Carter appointee; Senior since 2013
--Thomas Morrow Reavley (age: 92); Carter appointee; Senior since 1990
--Patrick Higginbotham (age: 76); Reagan appointee; Senior since 2006
--Rhesa Hawkins Barksdale (age: 69); Bush 41 appointee; Senior since 2009
--Jacques L. Wiener, Jr. (age: 79-80); Bush 41 appointee; Senior since 2010
--Emilio M. Garza (age: 66-67); Bush 41 appointee; Senior since 2012
--Harold R. DeMoss, Jr. (age: 83); Bush 41 appointee; Senior since 2007
--Fortunato "Pete" Benavides (age: 66-67); Clinton appointee; Senior since 2012


Accounting for Senior judges, the court's makeup is 15 appointed by Republican Presidents, against 7. Once President Obama's filled the 3 current vacancies, it'll be 15-10.



Here is the Wiki page for this court: http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Fifth_Circuit#Senior

[True Federalist (진정한 연방 주의자)]

Dennis is likely the only one who would do a voluntary retirement at this point.  The others are either young or Republicans who would like to wait till 2017 when a Republican might appoint their replacement.

[bedstuy]

What about judges taking senior status?

[True Federalist (진정한 연방 주의자)]

That's effectively the same as retiring as it opens up a slot for appointment. Maybe if the law forced judges into senior status if they were unable to keep up a full workload, tho I don't know whether it would be constitutional to do so.  I guess it depends on how one defines "good Behaviour" and whether moving to senior status would be considered "Continuance in Office" or not.

[bedstuy]

My point is that senior status judges are still taking on a reduced docket of cases.  So, if you're talking about the ideological balance, you need to included judges who have taken senior status.

[badgate]

I did not even notice the grid of Senior judges! Oops. Have amended the original post to account for Seniors and included a link to the Wiki page.


Taking Seniors into account...Reavley may retire as well soon. He is 90, and has been a Senior judge for over twenty years now. King only became a Senior on Dec. 31, 2013, so I don't think she's going anywhere.

[politicallefty]

That was one of my first thoughts with the Texas gay marriage case. I think there's virtually no chance for President Obama to flip the Fifth Circuit. If there's any circuit court in the country I'd expect to rule against gay marriage rights, it'd be the Fifth Circuit. It's now one of only four circuits (out of 13) that have a Republican-appointed majority. Even if Obama fills the three vacant seats on the Fifth Circuit, it'd take two Republican appointees to stand down and be replaced by Democratic appointees before that court flipped. I think it'll take a Democratic win in 2016 for the court to flip, and possibly the remaining circuit courts as well. If Democrats can control the White House for three or even four consecutive terms, I'd expect all of the circuit courts to have Democratic-appointed majorities.

[Bacon King]

The overall partisan makeup is irrelevant; the case will be heard by a three judge panel randomly selected from a pool of all active judges and senior judges requesting cases. Also if the case is successfully appealed to an en banc hearing (rare) then it's all active judges and no senior judges

[badgate]

The 5th Circuit has upheld Texas' 2013 anti-abortion laws.
http://www.dallasnews.com/news/state/headlines/20140327-u.s.-appeals-court-upholds-tough-new-texas-abortion-restrictions.ece?8

[politicallefty]

That decision was decided by one Reagan and two GWB appointees and is pretty much one that would be expected from that court.

Overall partisan makeup does matter for both three-judge panels and en banc hearings. The latter is for obvious reasons, and the former for basic statistical reasons. Republican-appointed judges dominate the Fifth Circuit and it shows in its rulings.

[badgate]

BUMP

Gregg Costa has been confirmed to the 5th Circuit.
http://www.burntorangereport.com/diary/15256/obama-nominee-gregg-costa-confirmed-to-5th-circuit-court-of-appeals-oversees-texas?utm_source=dlvr.it&utm_medium=twitter

So the court's current makeup is 10 appointed by Republican Presidents, against 5 appointed by Democratic Presidents, and 2 vacant.

Accounting for Senior judges, the court's makeup is 15 appointed by Republican Presidents, against 8.

[Antonio the Sixth]

Has Obama succeeded in flipping the makeup of some courts since Reid nuked the filibuster?

[Sol]

Has Obama succeeded in flipping the makeup of some courts since Reid nuked the filibuster?

The 4th Circuit has flipped pretty decisively, though much of that is from earlier in Obama's presidency.

[badgate]

Considering a Bush appointee supported by Rick Santorum overturned PA's same-sex marriage ban, this way of looking at the courts is a little superficial. Makes sense since we use the word "makeup."

[Antonio the Sixth]

Considering a Bush appointee supported by Rick Santorum overturned PA's same-sex marriage ban, this way of looking at the courts is a little superficial. Makes sense since we use the word "makeup."

Well, there are always judges that betray their appointers' expectations. Remember what Eisenhower said about nominating Earl Warren? That doesn't mean the party of the President who nominated a judge isn't a good predictor of their views.

[TJ in Oregon]

Considering a Bush appointee supported by Rick Santorum overturned PA's same-sex marriage ban, this way of looking at the courts is a little superficial. Makes sense since we use the word "makeup."

Well, there are always judges that betray their appointers' expectations. Remember what Eisenhower said about nominating Earl Warren? That doesn't mean the party of the President who nominated a judge isn't a good predictor of their views.

Republicans seem to be doing much worse than Democrats at this over the last few decades. It's been a long time since a Democrat-appointed judge betrayed them on a hot-button social issue.

[politicallefty]

Has Obama succeeded in flipping the makeup of some courts since Reid nuked the filibuster?

The Senate has been rapidly confirming judicial nominees as of late. It is crude measure, but (in terms of active judges) Democratic-appointees control nine circuits and Republican-appointees control four circuits. Since the nuclear option, 10 circuit judges have so far been confirmed (not to mention 38 district judges), I think flipping at least the DC and Tenth Circuits. At this point, the problem is that President Obama isn't nominating judges fast enough. There are still 10 vacancies on the Courts of Appeals, but nominees for only four of those.

Based on what I've read, it's probably either the Sixth or the Eighth Circuit taking the mantle as most conservative. I'm not sure of the most liberal, though the ultra-liberal stereotype of the Ninth Circuit is vastly overrated.

Republicans seem to be doing much worse than Democrats at this over the last few decades. It's been a long time since a Democrat-appointed judge betrayed them on a hot-button social issue.

That's true, though it could be that judges generally have a tendency to get more liberal as time goes on. I'm not sure if that's actually the case or not, but there does seem to be some evidence to back that up. On the other, it is indeed hard to think of Democratic-appointees that either backfired or became more conservative as time went on. Only Justice Frankfurter (FDR) and Justice White (JFK) come to mind.

[badgate]

Last Thursday, President Obama nominated the three vacancies in Texas:

-Eastern District of Texas
--Robert William Schroeder, III - nominated 6/26/2014
--Amos L. Mazzant, III - nominated 6/26/2014

-Western District of Texas
--Robert Lee Pittman - nominated 6/26/2014

There is also the vacancy in Louisiana that has yet to be confirmed:

-Middle District of Louisiana
--John D. deGravelles - nominated 3/13/2014, reported by committee 6/19/2014
---Here is a link to his questionnaire.

For those curious this is where I am getting my info. Great site for tracking the federal court vacancies. http://judicialnominations.org/pending-nominees

[politicallefty]

The Senate has been doing an excellent job at confirming judicial nominees. The biggest problem is that the President has been leaving far too many slots unfilled. At this point, for example, there are two vacancies on the Fifth Circuit and President Obama has yet to put forward nominees for either seat.

Once Cheryl Ann Krause is confirmed to the Third Circuit (final confirmation vote set for July 7), President Obama will have appointed 50 judges to the Courts of Appeals. At this point is their Presidencies, GWB was at 47 and Bill Clinton was at 44. Obama also has 219 district judges confirmed, while GWB was at 200 and Bill Clinton was at 222.

This is almost certainly the biggest reason as to why Democrats must keep control of the Senate for the remainder of President Obama's term.

[badgate]

Are you saying there are still two vacancies despite Obama filling three vacancies last Thursday? Jeez.

[politicallefty]

Are you saying there are still two vacancies despite Obama filling three vacancies last Thursday? Jeez.

I missed this post, but those nominations that you mentioned above were for the district courts and not the Fifth Circuit. There are three circuit court nominations pending that will almost all certainly be confirmed relatively shortly (one to the Fourth and two to the Eleventh). That would still leave seven vacancies on the circuit courts, none of which currently have nominees. There's no reason why the President shouldn't have nominees for all of them and have them confirmed before the end of the year. The risk of losing the Senate is far too high to let any current vacancies not have nominees in place.