Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Lawyer And The Law

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

Whether or not they voted for President Trump, many Americans realize the President was attempting to fulfill a commitment he had made during the campaign, and is being thwarted—for spurious reasons—by unelected federal judges. It is a sobering modern-day civics lesson. Welcome to the world the late Robert Bork warned us about in his 1990 jeremiad, The Tempting of America. Now that the general public has finally recognized the problem of judicial overreach, the logical follow-up question is, “Why are so many federal judges so liberal?”

Unfortunately, the Ninth Circuit is not unique, and sound originalist judges such as President Trump’s nominee to the Supreme Court, Neil Gorsuch, are the exception rather than the rule on the federal bench.  How did this happen?

First, the legal culture continues to tilt to the Left. The views of the legal academy mirror those of the organized bar (the policy positions advocated by the American Bar Association are indistinguishable from those of the American Civil Liberties Union) and of the large law firms, which preen themselves for global clients and the legal media. Judicial candidates are usually drawn from the ranks of elite law faculties or image-conscious BigLaw, which makes for an inhospitable environment for outspoken conservatives. (Recall that Paul Clement was forced to leave King and Spalding when that firm caved in to gay rights activists who protested Clement’s representation of the House of Representatives in the Defense of Marriage Act litigation.)

The pool of potential nominees to the federal bench is further skewed to the Left by bar associations (including the ABA), which often use supposedly neutral judicial evaluation processes to pan candidates who are outspoken conservatives. Opposition to same-sex marriage or abortion, advocacy of civil justice reform, support for color-blindness in higher education admissions, or other positions consistent with the Republican Party’s platform are frequently deemed to be “outside of the mainstream,” an indication of supposed bias or of “lacking judicial temperament.”

The suis generis Merrick Garland nomination aside, Republican judicial nominees often face greater confirmation hazards than Democratic nominees, because Republican senators usually exercise “advice and consent” with a greater gentility than their Democratic counterparts. For example, ACLU veteran Ruth Bader Ginsburg was confirmed by a 96 to 3 roll call vote, compared to Samuel Alito’s 58 to 42 confirmation vote, which seated him after the Democrats in the chamber attempted a filibuster. Clarence Thomas, most will recall, was barely confirmed—the vote was 52 to 48 and followed a smear campaign of historically ugly proportions. The other milestone in that regard, of course, was the infamous defeat of the nomination of Robert Bork—former Yale Law School professor, former Solicitor General of the United States, and a sitting judge on the D.C. Circuit Court of Appeals.

One of the reasons the Ninth Circuit is so liberal is the Senate’s “blue slip” rule, a longstanding custom that gives senators a virtual veto when it comes to any nominee from their state. Four states in the Ninth Circuit—California, Oregon, Washington, and Hawaii—are solidly blue and consistently elect two Democratic senators. The “blue slip” explains, for example, why the nomination to the Ninth Circuit of the eminently qualified Carolyn Kuhl of California by President George W. Bush languished in the Senate for three years and was then defeated.

Moreover, all Democratic appointees tend to be liberal, and typically vote in lock-step. In contrast, Republican appointees—often “moderate” to begin with—frequently drift to the Left (Justice Kennedy is just one example) or vote erratically in important cases (as Chief Justice John Roberts did in the Obamacare cases).

In sum, Democrats are much more partisan about the appointment of judges than Republicans are, and have succeeded in “staffing” the federal courts with many liberal ideologues who reliably promote the Left’s agenda. Republicans must overcome the institutional challenges discussed above and appoint courageous conservatives who will honor the Constitution. This will be a formidable undertaking, because the inertia in favor of the status quo is powerful.

Right now, in the conservative state of Texas, Senators Cornyn and Cruz (both of whom serve on the Judiciary Committee) utilize a bipartisan panel of lawyers (referred to as the Federal Judicial Evaluation Committee) to help them screen candidates for the federal bench in Texas. The “blue slip” rule does not come into play here, so there is no need to accommodate the other political party, yet Cornyn’s and Cruz’s FJEC has (at least in the past) included Houston lawyer Stephen Susman, a major Democratic Party donor and leader of the plaintiffs’ bar.

The Fifth Circuit, dominated by Texas, should be as conservative as the Ninth Circuit is liberal. Yet in critical cases involving affirmative action, voter ID, and class actions, the Fifth Circuit has faltered, reaching controversial outcomes favoring the Progressive agenda that could and should have been decided differently.

President Trump should make the Fifth Circuit a showcase for principled, conservative jurists. Texas has many excellent state appellate court judges with proven track records who would help restore originalist balance to the federal bench. The FJEC is currently interviewing candidates for two vacancies on the Fifth Circuit. Senators Cornyn and Cruz can help President Trump identify the most dedicated and fearless nominees to fill them.

If we want better judges on the federal courts, conservatives must abandon the failed strategies that have led to disappointment, beginning with ditching bipartisan selection in solidly red states. With the Senate and the White House under Republican control, there is no reason to compromise on judicial appointments.


[1] 8 U.S.C. Section 1182(f) states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

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  1. Devin Watkins says

    I agree with the ABA being quite skewed to the left, Republicans should stop relying on them as if they are neutral decision makers.

    Let’s look at each of the other cases you cite.

    Starting with affirmative action. Sadly your preferred jurisprudence of deference would lead to the exact result that you argue against. I wouldn’t be surprised if Bork would have upheld affirmative action. A majority gets to decide what it wants to do, according to you and Bork, and in this case they wanted affirmative action.

    As to voter ID, this is sadly based off of disparate impact and discriminatory motive. Disparate impact shouldn’t exist as it includes unintentional discrimination. State law makers and executive officials can do things entirely believing that the act is legal and appropriate (as they did in this case). Yet statistical evidence based not on the real action done (in this case voter ID), but instead on social economic differences between whites and blacks makes what they did supposedly illegal. Sadly, Congress added that discrimination can be “proved by showing discriminatory effect alone.” Yes, blacks have less picture ID then whites, but there is nothing discriminatory in this nor in requiring picture ID to vote. Instead, Congress should require equal treatment for everyone, which this clearly satisfies. The deference in this case was to Congress rather than the state legislature. But I do agree that the Court should have been focused on discriminatory effect of election turnout rather than merely if they already had an ID. And in this case we also get a perfect example of discriminatory motive not based on any actual direct evidence. They didn’t end up deciding this issue and remanded it but still, without evidence it should have been dismissed.

    As to the class action thing, I disagree with the majority opinion, but it isn’t all that bad compared to the other two. What is your big problem with it?

    There are a lot of options that Congress could do. They could, for instance, dissolve the Ninth Circuit and create a bunch of new circuits for this area. They don’t even have to reappoint the all old judges to these new Circuits if they don’t want to. While a judge must continue to be paid for the rest of their lives, they don’t need to be allowed to hear cases. While we are at it, I would love to see the D.C. Circuit dissolved and let the other Circuits handle administrative law too.

    As to the Fifth Circuit, it already has a lot of Republican appointees (although that doesn’t necessary mean they are good), but it also has 3 empty seats that Trump can fill, if he can select the right people.

    • Mark Pulliam says

      Devin, mainstream originalism regards race discrimination (including race-conscious affirmative action) as unconstitutional. I agree with this position. Until Justice Kennedy flip-flopped in Fisher II, this was the consistent position of Republican-appointed originalists. I don’t know how Robert Bork would have voted in these cases, but that’s not the issue. And “restraint” is not the same as “deference.” I favor restraint when the Constitution is silent, but believe courts should unhesitatingly strike down laws that conflict with the Constitution. I suggest that Cato turn its guns on the ABA.

      • Devin Watkins says

        1) You are simply wrong that Fisher II was the first time republican appointee’s supported affirmative action. Justice O’Connor, an appointee of Reagan, wrote Grutter v. Bollinger after all.

        2) The Constitution’s text is silent as to affirmative action, the words “affirmative action” never occur in the text. On this, the Constitution is silent, so why not have judicial restraint? Now, when considered in the greater context (including things said by people at the time and other context outside of the words), I agree that it is unconstitutional. But this just proves the need to not be constrained by only the text, but also expand that text to include the context in which the words were written. Now apply that same logic to the meaning of the Ninth Amendment.

        3) The school in these affirmative action cases are saying that they have valid non-discriminatory reasons for creating greater diversity that helps education. Why, under your theory, should courts not accept this, while blindly accepting Texas’s alleged non-discriminatory motives as to voter ID? In my opinion there is no solution to this other than getting judges to examine the evidence. Sometimes they get it wrong (as they did with voter ID), but blindly accepting the non-discriminatory motives is not appropriate in either case. Instead it is the lack of evidence that should be the determining factor in the voter ID case, not deference.

        • Mark Pulliam says

          I do not include Sandra Day O’Connor as an originalist. Re the 14th amendment being color blind, are you now arguing that Justice Harlan was wrong in Plessy v. Ferguson? The Constitution doesn’t have to specifically refer to affirmative action when it mandates “equal protection of the laws.” Save your “judicial engagement” talking points for another occasion.

          • Devin Watkins says

            I don’t believe O’Conner was an originalist, but neither do I believe Kennedy is (both republican appointees). I 100% agree with Judge Harlan’s dissent in Plessy v. Ferguson. I agree, the constitution doesn’t need to “specifically refer” to it, and instead a more vague term like “equal protection of the laws” when understood in context does apply to affirmative action. There are other things the Constitution doesn’t “specifically refer” to that I also think are understood in context to be prohibited…

  2. gabe says

    Heck, as for voter ID, all the Black robes had to do was go to YouTube for a review of the evidence:

    On a more serious note, guys:

    There is a time for every (interpretive methodolgy) under heaven.

    A time to restrain, a time to engage.

    But so long as v16 Eccliastes 3 is valid (with some minor edit:

    ” ¶And moreover I saw under the sun [IN] the place of judgment, that wickedness was there; and the [in] the place of righteousness, that iniquity was there”, we may add another *Time*

    There is no Time for constitutionalism.

    In other words, it is ALWAYS time to exercise one’s judicial duty.


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