While the focus on Donald Trump's influence on the judiciary is normally centered on the three associate justices he appointed to the Supreme Court — Amy Coney Barrett, Brent Kavanaugh and Neil Gorsuch — his impact is also being strongly felt in New Orleans where the 5th Circuit Court of Appeals resides and has been cranking out rulings so extreme it has created tension among the judges.
According to a deep dive by the Washington Post, Trump's imprint on the courts is on full display since he appointed a half dozen judges to that court who are described as "young, ambitious and outspoken" and have shaken things up with their disdain for previous rulings.
As the Post's Ann Marimow wrote, "Their rulings have at times broken with precedent and exposed rifts among the judges, illustrating Trump’s lasting legacy on the powerful set of federal courts that operate one step below the Supreme Court. Even some veteran conservatives on the court have criticized the newcomers for going too far."
Noting that four of the six served as advisors to Texas lawmakers, Marimow added, "With their provocative, colloquial writing styles, the judges are elevating their profiles in far-reaching opinions and public appearances, calling out 'cancel culture,' wokeness and sometimes even one another."
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Chief among them is Judge James C. Ho, who has called for a boycott of Yale Law School students as law clerks because of free speech policies at their school that he finds deplorable.
According to the report, the 5th Circuit has now become the go-to court for conservative activists looking for a sympathetic ear.
In an interview, Steve Vladeck, a University of Texas School of Law professor, explained, "These are the most conservative federal judges in the country having cases specifically brought so that they can decide them at a time when the Supreme Court is reversing some of their decisions, but not all of them. There’s nothing to lose."
A former 5th Circuit law clerk who now works at the Georgetown Center for the Constitution at Georgetown Law agreed.
“The reason it seems like there’s so much fire coming from the 5th Circuit is that they are getting really divisive cases,” explained Alexa Gervasi. “If you send controversial cases to the 5th Circuit, you’re going to get controversial opinions.”
"Of the 17 full-time spots on the 5th Circuit bench, 12 are held by judges nominated by Republican presidents and four by judges picked by Democratic presidents. One seat remains unfilled by Biden. The appeals courts almost always hear cases in three-judge panels drawn mainly from the court’s full-time judges, making the odds of having more than one Democratic pick on any panel unlikely," the Post report notes. "But the combination on the 5th Circuit of big personalities and aspirations — and the large volume of highly charged cases — makes the New Orleans bench a standout."
Gervasi added that there is stiff competition when it comes to writing opinions, explaining, "Everyone wants to have their say. I don’t think that’s just posturing for the Supreme Court.”
The report added, "Just as the Supreme Court’s conservative majority, with a trio of justices picked by Trump, has gravitated away from the restrained, go-slow approach of Chief Justice John G. Roberts Jr., so too has the 5th Circuit issued rulings that depart from precedent or the decisions of other appeals courts. Two of the new judges used to work for members of the Supreme Court’s conservative bloc: Andrew Oldham is a former clerk to Justice Samuel A. Alito Jr., who wrote the opinion eliminating the nationwide right to abortion, and Ho, a former clerk to Justice Clarence Thomas."
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