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July 19, 2005
The Group Attack On Justices

The long delay in nominating a successor to Sandra Day O'Connor has led to a bit of impatience in opposition circles. Partisan interest groups have had to read the tea leaves to determine the likeliest candidates for which they will need ready arguments of "extraordinary circumstances," giving them the leeway they believe will allow the Gang of 14 to approve a filibuster. These groups seem to have settled on a circuit-by-circuit group attack, and the Fifth Circuit Court of Appeals has become their primary target. The Washington Post reports that five of the Fifth have reportedly made President Bush's short list in an article subheaded, "Southern Appeals Bench Known For Conservatism":

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.

As both sides dig in for what is expected to a be contentious ideological struggle over a successor to Sandra Day O'Connor on the Supreme Court, five of the judges mentioned as possible nominees are on the 5th Circuit: Edith Brown Clement, Emilio M. Garza, Edith Hollan Jones, Priscilla R. Owen and Edward C. Prado. ...

The court -- which covers Texas, Mississippi and Louisiana -- is known for its independence, and the Supreme Court has reversed it in a number of high-profile cases. The high court has also openly rebuked the 5th Circuit in death penalty cases, signaling that the appeals court crossed the line in denying defendants' rights.

Lois Romano quotes several experts in deducing the overall thrust of the court, which she paints as an appellate bench at odds with the Supreme Court, suffering reversal after reversal. In that, Romano makes the Fifth look like a conservative mirror to the liberal Ninth. However, that doesn't add up with the history of the court. In 2003, the Center for Individual Freedom looked at the performance of the Ninth and determined that it had far and away more SCOTUS review than any other court.

The 2002-3 court reviewed 56 cases from the federal appellate courts. Twenty-four of these came from the Ninth Circuit, and SCOTUS reversed eighteen of them, accounting for 30% of all reversals with written opinions. Eight of them were unanimous, accounting for over a third of all unanimous reversals across all levels of the judiciary. Those eight amount to almost three times the total number of reversals from the Fifth in that session.

It appears that the tone of this article overstates the Fifth's actual track record in reversals.

Nor do the individuals quoted appear terribly informed of the court's actual performance:

"It really is quite unusual for a lower federal court to thumb its nose at the Supreme Court so explicitly," said Peter B. Edelman, a professor of constitutional law at Georgetown University law school. "If you look at some of the other courts, I doubt you'll find the same kind of flaunting defiance."

Theodore M. Shaw, the director of the NAACP Legal Defense Fund, said it is "extraordinary" how many times the Supreme Court felt it necessary to chastise the 5th Circuit. "We are not talking about a liberal Supreme Court," he noted. "We're talking about a conservative Supreme Court that apparently became frustrated with the 5th Circuit's failure to meaningfully review criminal convictions for constitutional infirmities . . . cases involving prosecutorial misconduct, police misconduct, racial discrimination. Those problems were not being addressed by the 5th Circuit, so the Supreme Court had to step in."

At least Romano identifies Shaw's affiliation. Edelman, a well-respected professor at Georgetown, also happens to sit on the boards of Center for Community Change, the Public Welfare Foundation, and Americans for Peace Now. He worked for Bobby Kennedy during his time in the Senate and on brother Ted Kennedy's 1980 presidential campaign. Edelman, while having earned tremendous respect, hardly qualifies as a disinterested legal expert.

It appears that the group attack will be the strategy employed, trying to paint a whole slate of justices with the "extremist" smear as an efficient opening salvo in the upcoming confirmation battle. Unfortunately for President Bush, the media seems to stand ready to assist in this effort with slanted reporting such as we see here with Lois Romano.

UPDATE: Beldar has more on this topic, including a lengthy explanation in my comments. And on a personal note, I want to wish him well in his recovery from a recent (and blessedly mild) heart attack. I also changed some inaccurate wording in the post based on his input.

Sphere It more on this topic, including a lengthy explanation in my comments. And on a personal note, I want to wish him well in his recovery from a recent (and blessedly mild) heart attack.&topic=politics"> Digg! View blog reactions
Posted by Ed Morrissey at July 19, 2005 6:04 AM

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