New Fifth Circuit Chief to Lead Court in National Spotlight

The Fifth Circuit is getting a new leader just weeks ahead of the presidential election that could dictate whether the New Orleans-based appeals court will keep hearing the legal fights that have elevated its national profile.

Judge Jennifer Walker Elrod takes over from outgoing Chief judge Priscilla Richman on Friday. Both were appointed by George W. Bush.

Chief circuit judges are chosen by meeting age and seniority requirements set by federal statute. But they’re still viewed as leadership for their court and the entire circuit, and can help set the tone for how judges work together.

The change comes as the Fifth Circuit faces the prospect of losing its relevance as a hub for conservative challenges to Biden administration policies. If Donald Trump wins the presidential election, groups challenging his policies would likely seek out courts with more Democratic appointees.

Elrod said in an interview that she doesn’t believe it falls within her responsibilities as a judge to think about the circuit’s national reputation. Liberals have criticized the court’s rulings in those high profile cases, and the Supreme Court has reversed some of its most controversial decisions.

But Elrod said she wished critics of the court wouldn’t focus so much on outcomes.

“It’s important for people to know and to have confidence that we are using our process in the best way we can, and that we are explaining what we’re doing so that you can follow it as we make many, many decisions,” she said. “It’s especially important that lawyers and others spend time to help people in our society understand what it is that judges do.”

“We are not at all picking winners and losers,” Elrod added. “We’re using a judicial process to try to answer people’s questions about some of the most difficult, important things that they’re going through in life.”

Marin Levy, a Duke law professor who has written about the roles of chief circuit judges, said increased polarization means that being chief judge for any circuit is a harder job than it has been in the past.

“Certainly I think any chief judge is going to be attuned to the particular attention that’s being paid to his or her circuit,” Levy said.

Outgoing chief

After becoming chief judge in 2019, Richman navigated the shift to remote proceedings due to the pandemic and saw the court’s docket balloon with legal questions that were previously litigated in Washington or other federal courts.

Elrod said Richman is “extremely professional” and gracious. She said the outgoing chief encouraged staffers to pursue technological innovations that help lawyers do their jobs better and help non-attorneys learn about how to access the courts.

Richman has helped prepare Elrod to take over. “She set the tone for collegiality and hard work,” Elrod said. “I think she’s been an excellent representative of the judiciary.”

Richman didn’t respond to a requests for an interview. But Judge Cory Wilson told Bloomberg Law that when he was appointed to the circuit in 2020, during the pandemic, Richman “made a point to make sure I knew what I was navigating.”

“She’s very diplomatic,” Wilson said. “I would say that she’s very empathetic as a leader. And my impression is that she’ll consider all perspectives before making a decision.”

Judge Don Willett said he’s been friends with Richman for decades. “Chief Judge Richman has been unswervingly steady and unflappable,” Willett wrote in an email. “She’s seen it all in her 30 years on the bench, both state and federal, so absolutely nothing fazes her.”

Conservative Voice

Elrod, who has sat on the court since 2007, is known as a conservative jurist. But some attorneys say her rulings don’t necessarily go as far as those by the newer Trump appointees.

She wrote the en banc circuit’s majority opinion against the Trump-era ban on bump stocks, which was affirmed by the US Supreme Court in June.

And she wrote the circuit’s panel ruling that would’ve restricted access to the abortion pill mifepristone. The Supreme Court undid that ruling in June, finding that the challengers didn’t prove they had “standing,” or were sufficiently injured by the FDA’s authorization of the pill.

Elrod also wrote an opinion in 2020 finding that the Affordable Care Act’s individual mandate was unconstitutional. The justices reversed that, too, for a lack of standing.

Elrod was named the Texas Review of Law & Politics’ “Jurist of the Year” in 2022, a designation the publication says is “selected on the basis of their contributions to conservative and libertarian causes of national importance.”

“Judge Elrod is a judge’s judge, and she sees the judiciary as a legal institution, not a political or cultural one,” said Willett, who presented that award to Elrod.

He said there isn’t a “single colleague, those on the so-called left or right, who is putting a finger (or an anvil) on the scale to impose a result they personally find more ideologically congenial, or to ensure that preferred groups or causes win.”

Russell Post, a Houston-based partner with Beck Redden who argues before the Fifth Circuit, said Elrod showed she was thinking like an appellate judge even when she was on the Texas state trial court.

“She was very serious about correct legal analysis, very serious about researching authorities herself to validate her rulings and went beyond the authorities cited by the litigants to be certain she was correct,” Post said.

Administrative Duties

But Elrod’s work on the bench is separate from the largely administrative responsibilities of a chief judge.

Levy said chief judges are expected to take on a number of public-facing duties, like regularly attending bar association meetings and meeting with political representatives within the circuit. Elrod will also join the federal judiciary’s policy-making arm, the Judicial Conference of the United States.

Elrod has chaired the Judicial Conference’s committee on ethics issues for the past three years, as the topic has come under increased scrutiny.

“She’s exerted leadership on the national level already, and I think she’s been effective at that,” Wilson said. “So I would expect she’s going to do the same kinds of things while she’s chief here.”

Elrod said that she enjoys administrative work. “I like to think of things to make us able to do our jobs more efficiently and to help people,” she said.

Willett said that, at the direction of Richman, he and Elrod co-chaired a committee tasked with redesigning the formatting of the circuit’s opinions. “Heaven knows, pedantic lawyers are prone to feisty font feuds. But thankfully, given Judge Elrod’s deft leadership, all Helvetica didn’t break loose,” he said.

Elrod said that, as chief, she anticipates the circuit will keep looking for ways to improve technologically. And she said she expects they’ll work to consider ethical guardrails for the use of AI by courts themselves.

Musical Ties

Elrod earned her undergraduate degree at Baylor before attending Harvard Law. She returned to her native Texas, where she was an attorney at Baker Botts before becoming a judge on the state trial court. She served there for five years before being selected for the federal appeals court, where she works out of Houston.

Her lifelong love of music has also intersected with her judgeship. Elrod said she has sung the national anthem at investiture ceremonies for colleagues, as well as at naturalization ceremonies for those becoming US citizens.

She also puts on an annual musical with her Houston-based American Inns of Court chapter: Last year’s performance was titled “New York Times vs. Sullivan at 60: Swift Justice in Any Era,” a Taylor Swift-inspired journey through the “eras” of defamation law.

And when Covid shut down courtrooms in 2020, Elrod starred in a video of Houston-based federal judges, singing a parody version of “You’ll Be Back” from the musical “Hamilton.”

“She can belt it out, both vocally and judicially,” said Willett, who has known Elrod since they were both freshmen at Baylor.

Elrod recalled that when the late Justice Sandra Day O’Connor sat by designation on the Fifth Circuit for a day, a group ventured out into New Orleans after arguments to listen to jazz. “That was a really special memory,” she said.