“Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.” — Edmund Burke
Before the President made his choice this week for a new nominee to fill the vacancy on the United States Supreme Court, the White House undertook a nationwide search. There were parameters. The pick was certain to be a woman. But by even the widest stretch of standards to be met by any nominee, one thing was pretty clear from the start. No judge serving on the Fifth Circuit Court of Appeals located in New Orleans was given the slightest consideration.
Being a federal court of appeals judge has become almost a prerequisite to ascending up to the Supreme Court. Every present judge on the Court was elevated from the federal court of appeals system. So one would think the seven women on the Fifth Circuit Court of Appeals, all from either Louisiana or Texas, would have been given a perusal review. No way say the close court watchers. Their qualifications or lack thereof, speak for themselves.
Here are just a few of the reasons why judges on the Fifth Circuit are held in such low esteem. Former chief judge Edith Jones received international notoriety a few years back when she ruled that a fellow named Calvin Burdine, convicted of murder and sentenced to death row, received a fair trial even though his court appointed lawyer slept through a good bit of the trial. Her colleague on the Fifth Circuit, Judge Priscilla Owen, also has a colorful and controversial list of questionable decisions. Times Picayune columnist James Gill outlined a litany of dubious rulings in a recent column, when he cited one example of Owens “setting on a case so long that a quadriplegic kid’s respirator failed before he could collect a dime of the $30 million awarded by a jury against Ford Motor Co. several years earlier.”
And then there is Judge Edith Clement. Numerous press reports immerged where Clement was called everything from a “Secrecy Freak” to a “Closet Fascist.” News articles also appeared questioning her judgment in taking free trips (called junkets for judges) paid for by conservative foundations that fund lawsuits that could end up in Clements’ court. The New Orleans Times Picayune referred to one of her decisions as being “patently un-American.”
The Fifth Circuit regularly leads all appeals courts throughout the country in its decisions being overturned by the U.S. Supreme Court. In an expose’ of the Fifth Circuit’s recent rulings, the Times Picayune quoted both Justices on the Supreme Court as well as prominent law professors who regularly lambasted verdicts handed down in New Orleans. University of Houston law professor David Dow said it seems clear that the Supreme Court “has lost confidence in the Fifth Circuit’s handling of capital cases.” And Justice Sandra Day O’Conner was equally blunt in criticizing the Fifth Circuit saying it was “paying lip service to principles of jurisprudence,” and that often the Fifth’s reasoning “has no foundation in the decisions of this court.”
It’s a shame for those who have to deal with the Fifth Circuit that its standing is so soiled, and that the reputation of some of its members has degenerated to the point of such serious criticism. During the civil rights era, Louisiana federal judges like John Minor Wisdom, J. Skelly Wright and Albert Tate were held in high regard nationally. Their work was admired and quoted in the nation’s best law schools. But with such a mediocre judicial stature today, Louisiana won’t be in the running for one of its own to move up to the nation’s highest court.
Federal court watchers have a name for federal judges who lack the scholarship, the temperament, the learning, and are simply in the wrong occupation. They are called “gray mice.” It seems pretty obvious that the Fifth circuit Court of Appeals is full of such critters. Unfortunately, there is not much, short of impeachment, the discipline system can do about them. But the court’s continuing incompetence places one more stain on the reputation of Louisiana.