Fifth Circuit Divide Sees Bush Judges Check Trump Appointees

An older generation of moderate judges are sometimes steering the Fifth Circuit away from taking up more controversial legal stances, as Donald Trump’s appointees settle into their seats on the court.

The four active judges appointed by President George W. Bush—Priscilla Richman, Leslie Southwick, Catharina Haynes, and Jennifer Walker Elrod—have been key votes on major cases, including whether the full circuit should take up legal questions pursued by conservative litigants.

No judge on the circuit uniformly votes in a certain way, including by which president appointed them to the court, and this bloc often doesn’t vote together. But court watchers said that they stand out for their measured approach in cases.

“These are institutionalist judges who are interested in maintaining the stability of existing institutions and are cautious about radical change,” said Russell Post, a Houston-based partner with Beck Redden who regularly argues before the Fifth Circuit.

Post said those judges can affect whether the full court will rehear a case. But he said he views the way they interact with other members of the court as “more significant,” particularly as they sit on the three-judge panels that hear thousands of appeals each year.

Moderate Group

Even as some of the court’s six Trump appointees push for the circuit to review its past precedents, the more moderate judges have, at times, thwarted those efforts.

Earlier this year, Richman, Southwick and Haynes were part of a majority that prevented the court from rehearing a case on whether a president could remove members of the Consumer Product Safety Commission at will. The case is now pending before the US Supreme Court.

And Southwick and Haynes voted against rehearing a venue fight involving Elon Musk’s SpaceX and whether it could block a challenge to the National Labor Relations Board’s constitutionality from being transferred out of the Fifth Circuit.

The judges can also influence panel opinions. They’re among the more senior active judges on the circuit, meaning they’re more likely to be in a position to assign who writes a majority opinion in a case. Then-Chief Judge Priscilla Richman was in that spot in March, authoring an opinion that kept in place an injunction against a Texas law that would’ve allowed state law enforcement to arrest and remove people who enter the country illegally. Judge Andrew Oldham, a Trump appointee, dissented.

Elrod also wrote the circuit’s panel opinion that would’ve partly upheld a district court ruling restricting access to the abortion pill mifepristone. Trump appointee James Ho dissented in part, saying he would’ve fully affirmed the trial court decision by another Trump nominated judge, Matthew Kascmaryk in Amarillo, Texas.

Tulane law professor Sally Brown Richardson said that to get enough support for the majority opinion, the writing judge needs to make sure at least one other judge is willing to sign onto their reasoning.

“To the extent that there is an increase in the number of concurrences that are written, you see judges wanting to further express their views that perhaps other members of the panel did not agree with, or would not accept in the majority opinion,” Richardson said.

Haynes has also said in several cases that while she agrees with the court’s judgment, she wouldn’t sign onto the majority opinion in full. She did so in a venue fight this summer, blocking the CFPB’s late fee credit card rule from being transferred out of Texas federal court, and in a July en banc opinion finding that a Mississippi constitutional provision stripping certain felons of the right to vote isn’t a “cruel and unusual punishment” under the US Constitution.

En Banc Effect

David Coale, a Dallas-based partner with Lynn Pinker Hurst Schwegmann, said that the Bush appointees “have a very significant effect” on when the circuit rehears cases en banc.

Richman, Southwick and Haynes were all part of the majority in the en banc court that last year voted 8-7 against revisiting the circuit’s affirmance of the immunity afforded to tech platforms under Section 230. Elrod—who some see as more aligned with the court’s Ronald Reagan and Trump appointees—led a dissent, calling the prior decisions “erroneous.”

But they also can be on the losing side: Richman, Southwick and Haynes were all dissenters from a July en banc decision that found unconstitutional a funding scheme for a FCC subsidy intended for low-income families and rural institutions like schools and hospitals that wanted to buy broadband services. Elrod joined the circuit’s Trump and Reagan appointees in that 9-7 ruling.

And they can join the majority in rulings celebrated by conservatives. All four Bush appointees agreed in an en banc decision last year that the Trump-era ban on bump stocks had to be overturned, although on different grounds. Elrod wrote the en banc court’s majority opinion in that case, which was affirmed by the US Supreme Court in a 6-3 ruling.

While the Bush appointees can currently steer in the court in some ways, it’s unclear if their influence will stick. If Trump wins the election in November and gets an opportunity to appoint new members to the court—especially if he can replace a Democratic appointee—the appellate court could find itself with a conservative supermajority.

“If they do have a supermajority, the influence of the Bush appointees will be significantly diminished,” Coale said.