How Would A Judge Butler Actually Affect The Fifth Circuit?

I appreciate the perspective of Mike Fragoso, who knows more about judicial nominees than just about anyone else. Mike is clearly right that there is a risk of not letting Judge Southwick hand his sinecure to his law clerk. Southwick can simply not take senior status under President Trump. Indeed, if Butler’s nomination is scuttled (Sullied?), Southwick can follow the unethical path of Judge Wynne and rescind his request for senior status. (Southwick’s already fragile reputation would be irreparably tarnished by such a move.) If so, Southwick could either take senior status under a Democratic President, or just keep serving until his seat becomes otherwise vacant.

The argument goes that it is better to have even a questionable Republican-appointed judge on the Fifth Circuit, rather than a proven liberal like Carlton Reeves. I can certainly see the logic here. But I’m not sure it works.

For starters, we should remember that more than 90% of the Fifth Circuit cases are unanimous. For these cases, there is no meaningful difference between Edith Jones and Steve Higginson. For these cases, whether it is Southwick or Butler or Reeves, the outcome would be the same.

What actually matters, of course, is the other 10% of cases. What especially matters are the en banc disputes where the seventeen-member court is usually divided on a raze-thin margin.

Going back at least a decade, I think in nearly every significant ideological en banc case, Judge Southwick has voted with the Democratic- appointees. I’m sure there are exceptions I am forgetting, but in cases that matter, Judge Southwick is virtually indistinguishable from Judge Higginson. (And for what it’s worth, I deeply respect Judge Higginson as the leader of the Fifth CIrcuit’s progressive wing.)

In 2022, I did a deep dive into Fifth CIrcuit en banc votes. I compared how the Republican-appointed judges vote as compared to Judge Edith H. Jones, who has long been the circuit’s conservative stalwart. Judge Southwick had an EHJ score of zero. (Judge Wilson’s score was as low as it was because he had only recently been confirmed to the bench.)

Southwick’s numbers in that slide were from the Biden Administration. It has gotten even worse during Trump 2.0

Indeed, I presented this paper at the Jackson Federalist Society Chapter, with Judge Southwick in the room. Lest you think I pull my punches in person, I don’t. He was a gentleman, and took it graciously. And no, Todd Butler was not there.

Let’s assume that Judge Butler is not Sullied, and he is confirmed. Let’s also assume that Judge Butler will be a jurisprudential clone of Judge Southwick. Now, the 10% of the cases that matter will have two center-left members. And if Judge Southwick keeps a full caseload, he is likely to sit on several en banc cases each year. Does anyone think Butler will vote against he person who gave him his sinecure? (The two are apparently very good friends as well.) Again, there will now be two center-left members. Judge Butler’s confirmation would arguably make some of the 9-8 victories for conservatives would split 9-9. How is that any better than the status quo?

If this is all right, I would much prefer a 75-year old Southwick casting one vote, than Southwick and a 40-something old Butler casting two votes.

The alternative, I suppose, is for 75-year old Southwick to cast one vote for the foreseeable future, and then have Carlton Reeves (born in 1964) cast one liberal vote for the foreseeable future after that. I much prefer this alternative.

If anyone has anything positive to send me about Judge Butler, please do. I’ve spoken to several people in Mississippi, and all I hear is “trust me, he’s conservative.” I’ve heard that before. Has he ever done anything conservative? Has he participated in any conservative civic group (paying FedSoc dues doesn’t count)? All I see is a Southwick acolyte who criticizes Justice Scalia and attacks street preachers as domestic terrorists.