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Tuesday, July 19, 2005

WaPo on the Fifth Circuit's potential SCOTUS nominees

An interesting and potentially informative news or even feature article could probably be written about the fact that five of the names rumored to be on President Bush's list of potential Supreme Court nominees are judges on the United States Court of Appeals for the Fifth Circuit. But this one in today's WaPo isn't such an article.

Sometimes this article is sloppy, as in its introduction:

It wasn't all that long ago that the U.S. Court of Appeals for the 5th Circuit was on the cutting edge of the civil rights movement, a liberal pocket of scholars aggressively enforcing the Supreme Court's demand for speedy desegregation in the Deep South.

But things have changed mightily in 20 years. Today, the New Orleans-based appellate court is considered among the most conservative in the land — but it is still at the center of politics and history.

Twenty years? Umm, try 40-50 years. This looks like an editing error; later, the article correctly refers to Jack Bass' 1981 book Unlikely Heroes about "a group of four legendary judges [who] dominated the court in the 1950s and '60s, aggressively interpreting the Supreme Court's civil rights rulings to accelerate racial equality in a resistant South."

Sometimes this article is just wrong, as when it says of the recent Miller-El decision that Justice Souter's opinion "said the 5th Circuit decision was a 'dismissive and strained interpretation' of how the Supreme Court had previously ruled" — basically an accusation that the Fifth Circuit was monkeying with the law. What Justice Souter's opinion actually said was (citations omitted, emphasis mine):

The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court’s finding of no discrimination was wrong, whether his evidence was viewed collectively or separately. We find this conclusion as unsupportable as the “dismissive and strained interpretation” of his evidence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination.

So Justice Souter actually was disagreeing with a Fifth Circuit panel's reading of the evidence presented by one side in a single case — not with the Fifth Circuit's (or even just that panel's) interpretation of any principle of law. Even then, he acknowledged that "judgment calls" were involved on that evidence. And the tone here is no harsher than in most any Supreme Court reversal of a circuit court opinion; they're pretty much finding something wrong every time they reverse, huh? But hey, the MSM party line was that the Miller-El decision was some kind of deliberate and unusual "rebuking" or "chastising" by the Supreme Court of the Fifth Circuit — a finger-waggling that might turn into a spanking. It's a whole lot easier to find a spotlight-hungry law professor or interest-group spokesman to give you a good speculative quote suggesting that sort of judicial catfight than it is to actually find, umm, you know, the Supreme Court actually saying that it's rebuking the Fifth Circuit for screwing up the law.

Elsewhere, the article is partly right about basic facts, but still badly misleading by omission. It correctly notes that Fifth Circuit Judge Edith Jones would be a controversial nominee in part because of something she wrote in a recent abortion case (ellipsis by WaPo):

Of the five judges mentioned for the Supreme Court, Jones, 56, is considered by lawyers who practice before the 5th Circuit to be the most intellectual, the most abrasive and the most ideological. Although she is a favorite of the Christian right, both Democrats and Republicans question whether Bush would risk the inevitable Senate fight if he nominated her.

In an opinion last year, she criticized the Supreme Court on Roe, writing: "The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy ... is that the facts no longer matter. This is a peculiar outcome for a court so committed to 'life' that it struggles with the particular facts of dozens of death penalty cases each year."

You'd certainly think from reading this WaPo characterization that Judge Jones cast an anti-abortion vote in this case, wouldn't you? But you'd be 100 percent wrong. In fact, as I wrote last month, Judge Jones personally and unilaterally dropped the case from the Fifth Circuit's oral argument calendar — actually taking heat from "Christian right" anti-abortion groups for doing so — and then authored a unanimous panel opinion that rejected an attempt by Norma McCorvey, the original "Jane Roe," to re-open Roe v. Wade. Why, I wonder, could the WaPo find room to quote Judge Jones at length, but then conceal through omission the way she actually voted? And why did WaPo choose to replace with an ellipsis this particular phrase: "which affects over a million women and unborn babies each year"?

Judge Jones' decision to also write a separate concurring opinion criticizing Roe was indeed unusual and highly provocative, but it's by no means all of the story. Arguably, it's not even the most important part of the story, because lots of folks have criticized Roe, but Judge Jones' actual vote in the McCorvey case, as conveyed through her opinion for the panel, is one of the most vivid examples I've ever seen of a judge strictly following binding law with which he or she personally disagrees. And the concurring opinion's final sentence was perhaps the most provocative of all, precisely because it strays outside the subject of abortion into a broader, very blunt criticism of the Supreme Court:

That the Court’s constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

Now, that would be a perfectly ordinary thing to read in a blog (a fairly wordy one like mine, anyway), or in a law review article, or maybe in a Scalia or Thomas dissent. But it's a genuinely remarkable thing to read in the official collected writings of United States Circuit Judges, a/k/a the Federal Reporter, Third Series, friends and neighbors. It's not quite the equivalent of Edith Jones shouting, in eager anticipation of a hotly contested confirmation hearing, "In yo' face, Chuckie Schumer! And lookout Justice Kennedy, I'm gonna whup up on yo' substantive due process butt!" But yeah, this would be a very rare example of upstream "chastising/rebuking." Now, it could just be the heartfelt statement of one judge's views; and the timing could be a complete coincidence. But it sorta reads like grist for a very aggressive set of talking points for political conservatives whose concerns about the Supreme Court aren't at all limited to abortion, doesn't it? So why did WaPo leave this, and the statistic about "babies," out? I might be wrong, but I think I smell a reporter regurgitating partisan talking points and pre-selected (Dowdified) partial quotes spoon-fed only from the other side here, folks. Well, heck, if you only look at one side's stuff, you miss at least half the drama!

And of course, WaPo continues the bloodthirsty "Texas Death Factory" meme, since that's a convenient and time-tested way to beat up on Dubya, his home state, its judges, and the horses they all rode in on:

Because it covers Texas — which has the highest execution rate in the country — the [Fifth Circuit] sees a lot of death penalty appeals. Most frustrating to foes of the death penalty and to civil rights lawyers is that the court has a record of rarely siding with defendants.

Oh, please. Whether it's in the Fifth Circuit or elsewhere, criminal defendants — either on direct appeals from convictions in the federal court system or in habeas corpus challenges to state-court convictions — always lose most of the time. Their lawyers are frustrated everywhere. But one reason that lawyers challenging death penalty convictions from Texas are particularly frustrated is that the Texas state trial and appellate courts have by now litigated almost every conceivable legal issue that can come up in a death penalty case, and for the most part either the State's positions have been repeatedly sustained by the federal courts or, when the State's positions have been rejected, the local prosecutors have made appropriate adjustments to follow the law. Lots of Fifth Circuit reversals would mean the system is consistently broken at the state trial- and appellate-court level. The one part of the "Death Factory" meme that is partly true is that Texas state-court prosecutors and trial judges have gotten really good at following the law in death penalty cases, and the prosecutors or state AGs have likewise gotten good at defending their convictions on appeal, and the Fifth Circuit has been pretty efficient in resolving those habeas appeals and clarifying legal issues as they've come up. It's not exactly an assembly line, but neither is it re-inventing the wheel with every death penalty case either — and it shouldn't be. All of which is to say, the absolute number of cases reflect the state's large population, the number of capital convictions represent its juries' belief in the appropriateness of that punishment for the most outrageous crimes, and the system is working relatively effectively and efficiently, all as Texas' citizens and legislators intend. If a Houston or Dallas jury sentences you to death, the odds of your actually getting a lethal injection in less than a decade have become quite good — and that's something that most Texans want to be both true and common knowledge, because death penalties that are never actually administered really suck as deterrents to capital crimes.

Maybe WaPo staff writer Lois Romano got stuck with an assignment she didn't want or didn't like — "Hey, lookee, five of the names written on trial balloons all come from the Fifth Circuit, go write a story about that" — and the best she could come up with before her deadline for this Page A8 story was this collection of superficial half-truths, talking points, and tired clichés. Figuring out whether this is a statistical fluke or something actually meaningful would certainly require some in-depth research and some original thought. I'm probably not the right person to try to do that either; my clerkship is too far in the past and my present practice in the Fifth Circuit too infrequent. But there are such people around who are genuinely knowledgeable, thoughtful, unconnected with any meme-peddling interest group, and available for consultation with full-time paid professional journalists from nationally recognized MSM outlets. In any event, WaPo should get its basic facts right, and this article fails even that test.

Posted by Beldar at 05:00 AM in Law (2006 & earlier), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to WaPo on the Fifth Circuit's potential SCOTUS nominees and sent a trackback ping are listed here:

» Five From the 5th Circuit Mentioned for High Court from Don Singleton

Tracked on Jul 19, 2005 9:49:26 AM

» The Group Attack On Justices from Captain's Quarters

Tracked on Jul 19, 2005 11:22:39 AM


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