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Fifth Circuit Judge to Exit Court Hearing Texas Abortion Law (2)

Jan. 13, 2022, 4:05 PMUpdated: Jan. 13, 2022, 5:12 PM

Judge Gregg Costa will resign in August as one of the far outnumbered Democratic-appointed jurists in the U.S. Court of Appeals for the Fifth Circuit, according to a notice on the U.S. Courts website.

A representative from the Fifth Circuit clerk’s office also confirmed to Bloomberg Law on Thursday that the circuit has received a copy of Costa’s letter to President Joe Biden informing him of his intentions to resign Aug. 5.

Costa, 49, joined the Fifth Circuit in 2014 after being nominated by Barack Obama. His departure will create a vacancy for Biden in a deeply conservative jurisdiction that’s repeatedly struck down Democratic policies in recent years.

“Judge Costa was widely respected by both bench and bar throughout the Fifth Circuit,” said Carl Cecere, a Dallas-based appellate attorney. “Like many, I thought he would continue making those contributions for decades to come. He was thought by many to be a contender for a spot on the Supreme Court.”

Costa didn’t immediately respond to a request for comment.

Judges when they step off the bench usually transition into senior status, a form of semi-retirement that allows them to still hear a reduced caseload. Costa’s decision is “quite surprising,” given that pre-retirement resignations are very rare, said John Collins, a visiting professor at George Washington University Law School who could only count four such instances nationwide over the past few decades.

“Democratic appointees are outnumbered 12-5, and the 12 Republican appointees are some of the most conservative on the bench,” Collins said in an email. “And as we’ve all seen over the last year, they are not shy about flexing their collective muscle.”

Donald Trump made six appointments to the Fifth Circuit as part of his bid to remake the federal bench with younger conservatives.

The New Orleans-based circuit has been the venue of choice for right-leaning organizations and businesses to challenge Biden administration priorities, often successfully.

In November, the Fifth Circuit froze a workplace rule that would’ve required large businesses to ensure workers are vaccinated or tested for Covid-19, and last month it denied the administration’s bid to overturn a Trump-era immigration policy forcing asylum seekers to wait in Mexico while their cases are pending.

The Fifth Circuit continues to deliberate over a Texas law, S.B. 8, that bans most abortions, and exchanges in the case between the court’s judges have become heated. At a Jan. 7 oral argument over whether the Texas Supreme Court should weigh in, Judges Edith Jones appeared to accuse Judge Stephen Higginson of litigating for the providers. Higginson insisted he was just trying to get an answer to his questions.

Costa previously served as a judge on the U.S. District Court for the Southern District of Texas, as an assistant U.S. attorney, and as an associate for Weil, Gotshal & Manges in Houston. He also clerked for the late Chief Justice William Rehnquist and Judge Raymond Randolph of the D.C. Circuit after graduating from the University of Texas School of Law in 1999.

—With assistance from Mary Anne Pazanowski and Kimberly Strawbridge Robinson

(Updates with Trump appointments, context on senior status.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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