NEW ORLEANS (AP) — The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation's most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.
Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.
The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.
Federal judges don't have a mandatory retirement age and aren't obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there's no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological bent during his second term.
Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it's plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.
"I wouldn't call that math. I'd call that informed speculation," he cautioned. "It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable."
A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. And, practically speaking, Senate rules allow any senator to prevent a confirmation vote on a nominee.
Judges aren't immune from basing their retirement decisions on political considerations, so the 5th Circuit's Republican-nominated judges may be inclined to wait out Obama's second term before vacating their seats.
"Some (judges) don't consider it at all," Wheeler said of timing. "For others, it's an important consideration."
Two judges nominated by Obama already serve on the 5th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents.
The 5th Circuit is one of 13 federal circuit courts. Obama has made a deeper imprint on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.
"It's a little early to tell, but there's a feeling (the 4th Circuit) is not as conservative as it was and has shifted away from that conservative reputation," University of Richmond law professor Carl Tobias said.
However, Tobias said tallying up the number of Democratic- and Republican-nominated judges would be a "crude instrument" for assessing a court's ideological leanings.
"Judges are not automatons," he added.
Case in point: When the U.S. Supreme Court considered the constitutionality of the Obama health care law's individual mandate, Chief Justice John Roberts, who was nominated by George W. Bush, sided with the Democratic-nominated justices in upholding the law.
The 5th Circuit has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates. It also tends to favor employers over employees and shows more tolerance for organized, state-sanctioned prayer than other circuits.
University of Houston Law Center professor David Dow, who clerked for 5th Circuit Judge Carolyn Dineen King in the mid-1980s, said judges' decisions are guided by Supreme Court precedent and statutory language far more than their personal ideology.
"There's frequently room for people to disagree on what a statute means, but there's usually not a wide range of disagreement," he said. "The significance of ideology in most cases can be overstated."
Dow, who founded the Texas Innocence Network and has represented more than 100 death row inmates in state and federal appeals, estimated that 95 percent of the cases on the 5th Circuit's docket would be decided the same way no matter which direction the court leans.
Even if Obama is able to fill several 5th Circuit seats, legal experts doubt he would try to stack the court with liberal-leaning judges. Sheldon Goldman, a University of Massachusetts at Amherst political science professor who has studied the politics of judicial selection, said he would expect Obama to nominate candidates with centrist credentials to avoid opposition from Republican senators who could hold up the nominations.
"A moderate is the best any Republican can hope for from the Obama administration," he said.
Obama has nominated 42 circuit court judges and has had 30 confirmed as of early December, according to Wheeler. He said Obama's confirmation rate is fairly consistent with the first terms of Clinton, who had 30 of his 39 nominations confirmed, and George W. Bush, who had 34 of 56 nominees confirmed.
Wheeler sees signs that Obama is poised to pick up the pace of his judicial nominations. The White House has submitted 15 nominations for district court seats since Congress broke in August, far more than his most recent two predecessors did during the same period of their presidencies, he said.
"He may be gearing up to go for broke in his second term," Wheeler added.
MAY 17 Here's a column from James Gill, this time in the Advocate. Gill, who has jumped ship from the Picayune, writes about the absurdity of dueling polls in this post. The numbers are so wildly different, it is obvious that both sides are "cooking the books," he writes. In particular, he looks at Sen. Mary Landrieu, and how her recent actions in DC have been received by those polled. Gill's acerbic, amusing prose is a welcome addition to a paper so conservative as to be occasionally lacking in personality.
MAY 17 Blogger Tom Aswell continues delivering bombshells about the state education department and Gov. Jindal's education "reform" efforts. In this post, he reports that students in the Shreveport area have been signed up for a charter school without their knowledge or consent. Most interesting to Aswell is how this Texas-based charter (with ties to GOP types) got the personal student information it has, if the students didn't give it.
MAY 17 This post by JR Ball in the Baton Rouge Business Report is an interesting tongue-in-cheek look at recent Baton Rouge economic development efforts. Among the items he examines is the idea that gaining a Costco makes BR a "world-class city." (Really? All you need is a different brand of Sam's? MK!) This effort, and other recent ones, are all built on the taxpayer's back, with tax zones, tax incentives and tax rebates, Ball writes.
MAY 17 Blogger CB Forgotston is critical of the legislature's reliance on a revenue-estimating committee's decision to include projected tax amnesty income in this year's forecast. That's a problem, CB posts, because the deadline for these people to pay their taxes is June 30, 2014. So when do you think these people who haven't paid taxes in years are going to pay their taxes? Surely not before June 30, and that means the money won't be there for this year's budget, he argues.
MAY 17 Here's an interesting blog out of California by a Hollywood writer, attorney and academic named Brian Alan Lane. He blogs about higher ed, and was a whistle-blower in a scandal over false credentials. In this post, he takes aim at LSU's new top dog, King Alexander. It's convoluted and a little confusing, but it sure makes Alexander a lot more interesting than he was yesterday.
MAY 17 Blogger Robert Mann writes about the LSU Board's refusal to allow Dr. Fred Cerise to testify before the legislature about Gov. Jindal's plan to close down all the state's charity hospitals and dump the poor on the private system. It's hard to imagine anyone more qualified than Cerise to testify about that, so why would anyone try to prevent him doing so? Mann thinks it is because the powers that be aren't interested in hearing any truth about the plan.
MAY 17 This post on the Louisiana Sinkhole Bugle, a blog that notes developments in the Bayou Corne and Jefferson Island salt domes, talks about a proposed expansion of the salt dome storage under Lake Peigneur in Iberia Parish. Residents are working against it for several reasons, including two biggies: the sinkhole disaster in Bayou Corne and the continuing, unexplained bubbling on the surface of the Lake.
MAY 17 NOLA police arrested more people Thursday accused of either being involved in the Mother's Day shooting or hiding the suspect afterward, this Gambit story reports. The NOLA police chief said he suspects the whole thing was gang-related and throws out a challenge to the gangs: he's got informants now, he says, and he knows a lot more than the gangs want him to know. The people who live in the neighborhoods terrorized by gangs are ready to talk, he says.
Is it a crime for citizens to photograph, video, or take notes of a police officer in the line of duty, or a right protected by the First Amendment of the U.S. Constitution? Locally, such activity, as witnessed recently, will at the very least result in a night spent behind bars.
David Calhoun and Elizabeth “EB” Brooks are the first two employees of Lafayette Central Park Inc., the nonprofit charged with turning Lafayette Consolidated Government’s 100-acre Johnston Street Horse Farm property into a passive public park. Calhoun was named executive director, and Brooks is director of planning and design.
Episcopal School of Acadiana’s Dr. Joshua Caffery, chair of the school’s English Department, is headed to Washington, D.C., and the Library of Congress as the latest winner of the Alan Lomax Fellowship in Folklife Studies.