How Trump reshaped the fifth circuit to become the ‘most extreme’ US court | Law (US)

Öne publicly lamented the “moral tragedy of abortion”. Another suggested that same-sex marriage “jeopardizes civil peace”. A third tweeted negatively about Hillary Clinton using the hashtags #CrookedHillary, #basketofdeplorables, and #Scandalabra.

James Ho, Stuart Kyle Duncan and Cory Wilson are among the six judges appointed by former President Donald Trump to the U.S. Court of Appeals for the Fifth Court, turning one of the most conservative – and influential – courts in America even further to the right.

The consequences of Trump’s reorganization of the federal judiciary can be felt acutely in the fifth circle on topics from abortion to immigration to the coronavirus pandemic. The court’s willingness to support Republican extremism has effectively made it its main legal bulwark against Joe Biden.

“The Supreme Court is without a doubt the most powerful court in the nation. But the 5th District, the federal appeals court that covers Louisiana, Mississippi, and Texas, makes a claim of being the most dangerous, ”wrote Ruth Marcus, assistant editor of the Washington Post’s editorial page, in August.

The Supreme Court has the final say on the constitutionality of controversial laws and with its three appointments bears the stamp of Trump. But the vast majority of cases never get that far. Instead, 13 appellate courts, each covering a different region, can rule on most appeals across the country.

Edward Fallone, Associate Professor at Marquette University Law School, said, “They are really error-correcting courts. Their function is primarily to correct the trial judge when he has made a mistake. They don’t have the power to break sedentary Supreme Court precedents, but when there are cases where there is no precedent and they write on a clean slate, they get their first attempt at defining the law. “

Of the 13 appeals courts, which typically hear cases before three judges, the US District of Columbia Court of Appeals in Washington is widely recognized as the biggest hitter. On Thursday, for example, it temporarily blocked the publication of Trump’s White House record of the January 6 attack on the U.S. Capitol.

But the fifth racetrack, based in New Orleans, Louisiana, has long shown the ability to beat over its weight. Half a century ago it was considered a pioneer in handling most civil rights cases. In 1964, Time Magazine quoted a leading lawyer as saying, “Without the Fifth Circuit, we would be on the verge of actual warfare in the South.”

The transformation of the court reflected the politics of the deep south and recruited judges and legal scholars from increasingly conservative ranks. Of the 17 active judges today, 12 were appointed by Republican presidents.

When two posts became vacant during Barack Obama’s presidency, Republicans managed to derail the nomination process and keep the seats open. (In 2015, the court specifically upheld a decision blocking Obama’s orders to protect undocumented immigrants whose children are U.S. citizens.)

Then came Trump, who called six judges to court, more than a third of his total composition. All of them are relatively young, including Andrew Oldham, a former legal advisor to Texas Governor Greg Abbott, who is in his early 40s. Federal judges have lifelong terms and typically serve long after the presidents who nominated them have left their office.

Carl Tobias, a law professor at the University of Richmond, Virginia, said of the Fifth Circle justices: “The vast majority were appointed by Republican presidents derived from Ronald Reagan, George HW Bush, and George W Bush. Of course, the Bushs knew all of these people personally, I think, but Trump really stepped it up because he voted for even more conservative people than the Bushs.

This affects which cases the court is likely to hear. Appeals in the ruby ​​red states of Louisiana, Mississippi and Texas naturally go before the fifth round. However, its tough reputation is also an invitation to outsiders to “forum shopping”, in which a plaintiff or his backers choose a court that deals with his claims in the most favorable way.

Christopher Kang, co-founder and chief counsel of the progressive advocacy group Demand Justice, said, “What we have seen over the past few years is that conservatives are populating the fifth circle with very ultra-conservative ideological judges and so, especially when controversial issues arise, lawyers find their way a way for the whole country to file in the fifth court case, which then makes it possible to hear these cases and to have an overwhelming influence on the development of the law. “

He added, “This was a very deliberate decision by conservative right-wing activists to bring their cases to the fifth trial so they can make the most extreme decision as early as possible in the process.”

In October, the fifth district temporarily reintroduced the Texan abortion law, the most extreme in the country, which bans the procedure as early as six weeks after pregnancy and outsources enforcement of the ban to ordinary citizens. Earlier this month, it suspended efforts by the Biden government to require workers in companies with at least 100 employees to be vaccinated against Covid-19 or tested weekly.

Kang noted, “The fifth circle is always the place for the most extreme judgments, and then the question of whether or not the Supreme Court will intervene is how the Supreme Court will react.”

So far, the fifth circle has often proven to be too extreme, even for a Supreme Court with a solid conservative majority. The High Court overturned six out of seven Fifth Court decisions in the 2019-2020 term and five out of seven decisions in the 2020-2021 term. Among them were fifth circle judgments upholding an abortion law in Louisiana and repealing the Affordable Care Act.

Trump appointed more than 200 judges to the Bundesbank, including almost as many federal appellate judges in four years (54) as Obama in eight (55) – also because Mitch McConnell, the Republican majority leader in the Senate, thwarted many Obama’s appointees. Trump has “flipped” the balance of multiple appeals courts on a majority of Republican appointments.

However, Biden has set out to reverse the trend at an impressive rate. Kang commented, “There is definitely reason to be optimistic that President Biden and the Senate Democrats are prioritizing judges on the Democratic side like never before. I think they are on the right track to have President Biden appoint more appellate judges than Trump did in his freshman year.

Biden’s emphasis on professional diversity is also encouraging, Kang continued. “Public defenders and civil rights lawyers and labor lawyers on the union side – the lawyers who have traditionally been banned from the bank are now increasing, and this is hugely important.

“The question is, how many posts can President Biden fill? Since the judges’ positions are for life, you can only fill vacancies when a judge retires or dies. President Biden is filling these posts very quickly, but at some point there may be no more vacancies. “

Conservatives, however, reject the premise that Trump twisted the lower courts so that they would no longer represent the will of the people on reproductive rights and other issues. Curt Levey, President of the Advocacy Committee for the Judiciary, said, “Polls show that around 70.75% generally believe that abortions should be protected, but not on-demand abortions – a moderate position that could be over Roe v Wade not implemented.

“Depending on what the Supreme Court decides, it and the Fifth Circle could well be right in the middle of American public opinion. I could list a ton of problems like that, so what I don’t know is that the fifth circuit is no more pace with the Americans than some of the more liberal circuits. The racetracks tend to mirror America, as a number of presidents dating back to Reagan have appointed judges. “

https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us