Fifth Circuit Court of Appeals: Source of Next Nominee?
RENEE MONTAGNE, host:
As President Bush considers his next choice for the Supreme Court, several people seen as possible nominees come from a single Southern appeals court. Steve Inskeep spoke to an observer of the Fifth Circuit Court of Appeals.
STEVE INSKEEP, host:
The court is based in New Orleans, though its judges relocated to Texas after Hurricane Katrina. To learn more about that court, we've contacted Michael Gerhardt. He's a constitutional law professor at the University of North Carolina.
Welcome to the program.
Professor MICHAEL GERHARDT (University of North Carolina): Thanks for having me.
INSKEEP: So taken as an appeals court, and we've got many judges here, how does it compare to other courts and other regions of the country?
Prof. GERHARDT: It is clearly one of the most conservative appellate courts in the country, probably along with the US Court of Appeals for the Fourth Circuit and thus, I think, becomes a likely place to which the president will look for the next nominee.
INSKEEP: Edith Jones, Priscilla Owen, Edith Brown Clement--these are all names that have been mentioned as possible Supreme Court nominees. What makes them so well known?
Prof. GERHARDT: They're well known, I think, for several reasons, one of which is, at least in the case of Judge Jones, she has not been reticent. She has been an outspoken critic of liberal jurisprudence, an outspoken critic of a number of leading Supreme Court opinions, including Roe vs. Wade. I think the other reason why this circuit has become well known for its conservatism is these people tend to be rather young. Judge Garza was the youngest appointee in the country at the time he first took a district court judgeship. Judge Jones was 31 years old when she went on the Federal Court of Appeals. So their youth gives them an advantage in building up doctrine and becoming I think well known over time for their jurisprudence.
INSKEEP: What does the conservativism of this court say about the way that the federal court system has changed over the last couple of decades?
Prof. GERHARDT: The Fifth Circuit is a good example of what's happened over the last couple of decades. President Bush and past Republican presidents have focused a great deal on lower court appointees, and the reason they have is because most decisions are decided or made finally by the Federal Court of Appeals, locally. They're not decided by the Supreme Court.
INSKEEP: What are some other areas of law where this circuit has made a distinction?
Prof. GERHARDT: The circuit has also handled a couple abortion cases and that's been an area in which Judge Garza and Judge Jones have both come out and openly criticized Roe vs. Wade and really almost urged the Supreme Court to overrule it. The other areas in which it has handled some cases is employment discrimination, a number of cases involving gender discrimination. And these judges have been at the forefront of narrowly interpreting the federal law restricting gender discrimination and oftentimes chastising plaintiffs for wasting the court's time in that area.
INSKEEP: Have these judges who've been mentioned as possible Supreme Court candidates tended to all rule the same way?
Prof. GERHARDT: They have largely ruled the same way but not always. I think Judge Clement, for instance, has perhaps not been quite as doctrinaire as these other judges. And so she sometimes might not say as much or perhaps rule quite as consistently as some of the other judges. And, of course, Judge Owen is relatively new to this circuit. She has spent most of her time as a judge on the Texas Supreme Court where, for instance, in over 170 cases decided against consumers, she never once ruled in their favor; that is to say, she sort of never once dissented.
INSKEEP: How important is it that there's a number of women or minority conservative judges on this court?
Prof. GERHARDT: I think that's very important. We are replacing a historic appointee. Sandra Day O'Connor obviously was the first woman appointed to the US Supreme Court. She also was the swing judge in most cases over the last several years. The Fifth Circuit covers Texas, Louisiana and Mississippi, and those tend to be states that produce a lot of women and Hispanic lawyers. In particular, Texas is the home of Judge Garza, also the home of Judge Jones and Judge Owen. Being a big state, presidents have found it easier to find the kind of women and the kind of Hispanic judges they want to appoint.
INSKEEP: Mr. Gerhardt, thanks very much.
Prof. GERHARDT: Thanks for having me.
INSKEEP: Michael Gerhardt is at the University of North Carolina.
MONTAGNE: You're listening to MORNING EDITION from NPR News.
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