Carl P. Leubsdorf: Lessons from a Conservative Court of Appeal
In recent weeks, the federal appeals court that includes Texas and two states in the Deep South has issued rulings in two cases that illustrate the extent of its Conservative rule – and the continued influence of former President Donald Trump.
In one, he allowed Texas’ controversial new law that severely restricts abortions to have a temporary effect, despite questions about its constitutionality. In the second, he blocked the Biden administration’s efforts to impose anti-COVID gunfire on businesses, due to questions over its constitutionality.
In doing so, the U.S. 5th Circuit Court of Appeals showed the impact of decades in which Republican presidents appointed a majority of its judges, including 12 out of 17 active.
At the same time, he provided a graphic illustration of how the changing ideology of the Republican Party has impacted federal courts – and with it, national politics – particularly at the level of appellate courts and tribunals. the Supreme Court.
About 60 years ago, as a young Associated Press reporter in New Orleans, I covered the 5th Circuit Court of Appeals, whose jurisdiction at the time included three other southern states. It was also dominated by Republican candidates, six of its nine judges in 1961.
But while today’s GOP candidates are pulling the 5th Circuit to the right, those in 1961 pulling it the other way around, especially on civil rights, the dominant issue before the panel in the decade after the Supreme Court outlawed segregation in public schools and that Congress passed the first civil rights laws of the modern era.
President Dwight D. Eisenhower appointed five of these six GOP judges, and three were instrumental in deciding a range of civil rights cases that protected the rights of African Americans, particularly to vote. and attend previously all-white educational institutions.
Three of them, John Brown of Houston, John Minor Wisdom of New Orleans and Elbert Tuttle of Atlanta, were appointed judges after playing a role in Eisenhower’s victory at the 1952 Republican Convention over his principal GOP presidential rival Senator Robert Taft of Ohio.
All three were at the forefront of the GOP’s efforts to break Democrats ‘and segregationists’ hold on the so-called “Solid South” and became supporters of Eisenhower in what turned out to be a race. to the tight nomination.
Wisdom and Tuttle questioned the credentials, which led to Eisenhower delegates from Louisiana and Georgia sitting on rival pro-Taft groups. Brown played a lesser role but was a member of the pro-Eisenhower faction in the Texas delegation and actively assisted the WWII commander in carrying the state. These delegate contests gave Eisenhower a narrow but decisive lead before a parade of switchers clinched his nomination.
As justices, the three opposed delays in the 1954 Supreme Court ruling (also led by Eisenhower candidate Earl Warren) banning segregation in public schools.
The case I covered more closely was the 1962 appeal in which they played a decisive role in overturning the initial decision of a district judge and ordering the enlistment of a Black Air Force veteran. , James Meredith, at the former all-white University of Mississippi. But they also formed the majority in many cases, ordering southern state registrars to end practices banning black people from voting.
Judge Richard Rives of Montgomery, Alabama, joined the three Republicans in many of the decisions. (Note: their story is told in Jack Bass’s 1981 book, “Unlikely Heroes.”)
During the Ole Miss desegregation case, the lead attorney representing the state of Mississippi’s efforts to prevent Meredith’s enlistment was Charles Clark, an impressive 36-year-old Jackson attorney. Bass noted that his professionalism attracted respect from the judges, even if they rejected his arguments.
Later, President Richard Nixon appointed Clark to the 5th Circuit bench, a symbol of the GOP’s shifting ideological makeup. (Another was his choice of G. Harrold Carswell, whose history of supporting segregation and racist statements later led the Senate to reject his appointment to the Supreme Court.) In 1981, the court was divided. Louisiana and Mississippi stayed with Texas in the 5th Circuit while Florida, Alabama and Georgia moved on to the new 11th Circuit.
Although Republicans occupied the White House for exactly half of the next 40 years, they appointed 25 of the 32 circuit judges, a combination of good timing and successful delays from Senate Republicans.
A standoff between President Barack Obama and the two Texas GOP Senators John Cornyn and Ted Cruz has prevented Obama from filling vacancies after the retirement of Judge Emilio Garza, a person appointed by George HW Bush who took over senior executive status in 2012, and Judge Carolyn Dineen King, a Jimmy Carter candidate who did so in 2013. Trump filled the vacancies with two powerful Conservatives, James Ho and Don Willett, and, backed by the GOP majority in the Senate, ultimately filled six of 17 seats.
Judge Ho, Cornyn’s former assistant and clerk of Judge Clarence Thomas, was joined by Judge Catharina Haynes, a candidate for George W. Bush, to allow Texas abortion law to remain in force. Trump candidates Kyle Duncan and Kurt Englehardt and Judge Edith Jones, the last remnant of Ronald Reagan from the court, have suspended Biden’s warrant order.
In either case, the last word will come from the Supreme Court, dominated by six GOP candidates, including three from Trump. Trump may have lost the 2020 election, but his judicial legacy could last for decades.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Write to him by e-mail at [email protected]