Thursday, May 28, 2009
Baton Rouge, Louisiana

A SUPREME COURT APPOINTEE FROM LOUISIANA?

FAT CHANCE!

Before the President made his choice this week for a new nominee to fill the coming 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 in New Orleans was given the slightest consideration.

It’s true that the Fifth Circuit is heavy laden with Republican appointees. But that has not been a major stumbling block for the new President so far. His most recent major appointment, the new Ambassador to China, went to Republican Governor John Huntsman, who had set up an exploratory committee to run against President Obama in 2012. And the final choice made on Tuesday of this week, Court of Appeals Judge Sonia Sotomayor, was initially appointed to the federal bench by President George H. W. Bush.

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 three 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.

The chief judge is one Edith Jones, who 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. A sleeping attorney didn’t’ seem to bother Jones, who wrote in upholding the conviction that “we cannot determine whether the defense counsel slept during a critical stage of Burdine’s trial.” So, according to Jones, it’s OK to nap a bit during a trial if you are representing a defendant who could be (and in this case was) given the death penalty. Just pick and choose when you doze off.

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.” Former US Attorney General Alberto Gonzales, once a colleague of Owens on the Texas Supreme Court, described one of her opinions in a parental consent case as “an unconscionable act of judicial activism.”

And then there is Judge Edith Clement. She was in the hunt to move up to the nation’s highest court back in January of 2006. Clement was reportedly a close friend of Laura Bush, and some odds makers had her at the top of the potential candidates’ list. NBC news even broke in to regular programming to state the Clements was the choice. But then her record on the Fifth Circuit was put under the political microscope.

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 who fund lawsuits that could end up in Clements’ court.

The New Orleans Times Picayune wrote a blistering editorial concerning the veil of secrecy Clement insisted upon in her trials. In one such case that, as many of you know, I followed quite closely, Clement dropped a curtain around the whole trial with gag orders, secrecy in picking jurors, allowing the withholding of critical evidence, and even preventing the press from writing anything about the jurors. Of Clements’ rulings, the Times Picayune had this to say: Clement “took the unprecedented step of suggesting that the media call her to get permission before publishing anything about the jurors. The idea of the media or any citizen having to ask the government for permission to exercise free speech is patently un-American.”

So with the labels of secrecy freak, closet fascist, and ruling in a way that is “patently un-American,” Clements’ hopes and chances of breaking into the first team line up of the Supremes quickly crashed and burned.

The Fifth Circuit regularly leads all appeals courts throughout the country in its decisions being over turned 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 recently retired 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.
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“Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.”
-Edmund Burke

Peace and Justice

Jim Brown


Jim Brown’s weekly column appears in numerous newspapers and websites throughout the south. To read past columns going back to 2002, go to www.jimbrownla.com.