New Fifth Circuit Judges Possible for Trump, Big Cases to Shift

The US Court of Appeals for the Fifth Circuit may be cemented as an ultra-conservative powerhouse during President-elect Donald Trump’s second term, even as it’s unlikely to hear the kinds of high-profile policy challenges that it did during the Biden administration.

Six of the court’s 17 active judges are eligible to step back from the bench, and four of them were nominated by Republican presidents. Edith Jones and Jerry Smith, are Ronald Reagan appointees, and Priscilla Richman and Leslie Southwick were appointed by George W. Bush.

That means the court, which already has six Trump appointees, could see its bench move even further to right. That’s especially true if either of the Bush appointees take senior status, a form of semi-retirement for federal judges, or fully step off the bench, opening the door for a more conservative appointee to fill the seat of a moderate jurist.

“The opportunity is there now” for Republican-appointed judges to have their seat filled by Trump, said Daniel Walters, a professor at Texas A&M University School of Law.

However, Walters said, “they may be having some reservations about being replaced with Trump’s brand of Republican judicial nominee.”

Older generations of Republican appointed judges have been seen as more moderate than judges who were tapped during Trump’s first term.

Southwick has been one of the most frequent opinion writers on the court, said Sally Richardson, a law professor at Tulane University. While he’s a Bush appointee, in recent years he’s been siding more often with liberal members of the court.

Richardson said his replacement under Trump would likely be more in line with other Trump appointees on the court like James Ho, Andrew Oldham, and Stuart Kyle Duncan, who are among the circuit’s most conservative members.

“I don’t think anyone would say Judge Southwick is a raging liberal in terms of his judicial philosophy, but to the extent he’s siding more with the more liberal wing, that certainly would have an impact,” Richardson said.

Another seat on the court could open up if Trump were to elevate one of the Fifth Circuit’s members to the US Supreme Court. The president-elect included Ho on a shortlist of potential Supreme Court picks that was released in 2020, and Oldham is also viewed as a conservative rising star.

“Certainly any of the Trump appointees, be they on the Fifth or another circuit, all would be good shots to be a Supreme Court appointee under a Trump II presidency,” Richardson said.

Forum Move

Trump’s appointees on the Fifth Circuit have made their mark as they heard lawsuits filed by conservative litigants, largely challenging Biden administration policies.

But efforts to fight a second Trump administration’s policies are certain to wind up in other courts. The Ninth and DC Circuits were both home to liberal lawsuits during the first Trump administration, and those and other left-leaning courts are certain to preside over future cases.

Walters said parties challenging Trump policies “are going to be strategic about where they file, and are going to look for the most friendly forum possible.”

“It’s probably not going to be in the district courts in the Fifth Circuit,” he said, pointing to federal trial courts in California, Massachusetts, Washington, and Chicago as more likely venues.

Conservative lawsuits against Biden policies have wound their way through several of the Texas federal trial courts. The US District Court for the Northern District of Texas, which features some one or two-judge divisions, in particular has been a favored venue.

Walters said that, if the cases are filed outside the Fifth Circuit, it means missing out on “the ultimate test” of whether administrative law is applied neutrally, regardless of which political party is behind a regulation.