When Judges Pick Their Law Clerks As Replacements

In December 2017, I wrote in National Review that Republican-appointed judges should consider taking senior status so President Trump could fill those seats. That essay struck a nerve with a lot of judges. Some of them talked to me privately. Judge Leslie Southwick of the Fifth Circuit chose to address it directly in a Notre Dame Law Review article. Here is an excerpt:

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen; at least partially because of the risks presented by the 2020 elections, Majority Leader McConnell has personally contacted eligible judges “to sound them out on their plans and assure them that they would have worthy successors.”528 A similar report by columnist Fred Barnes in March 2020 was that Senators McConnell, Grassley, and Graham together decided to urge retirements and had themselves talked to many of the eligible judges.529

As to my personal knowledge, I will borrow from the worn-out joke about whether someone believed in infant baptism: “Believe in it? I’ve seen it.” My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I’ve seen it . . . or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case. It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.

I’ve kept that article in mind for the past nine years as Judge Southwick continue to serve in active status. Judge Southwick wrote an entire book about his struggle to get appointed to the Fifth Circuit. He gave a talk at the Houston FedSoc some years ago, and I was struck by someone who was so focused on securing a lifetime sinecure that it seemed to define him. I saw Judge Southwick as a man of principle who would hold his job till he could hold it no longer, and would not step down for alternative considerations. While I usually disagree with Southwick’s rulings, I at least gave him credit for sticking to his convictions.

No doubt the White House tried again to nudge Southwick to take senior status. In 2017, he did not find that entreaty “sufficiently encouraging.” It seems times have changed.

On Tuesday, September 28, Judge Southwick wrote to President Trump that he plans to take senior status upon the confirmation of his successor. Barely two days later, President Trump announced a nominee to fill the seat. The fix was in.

I am pleased to announce the nomination of Todd Butler to the United States Court of Appeals for the Fifth Circuit! A proud graduate of Mississippi State University and Mississippi College of Law (Graduating summa cum laude from both!), Todd is currently a Partner at Phelps Dunbar in Jackson, Mississippi. He has argued numerous times before the Fifth Circuit, previously clerked for highly respected Judge, Leslie Southwick, and has been a strong defender of Law Enforcement throughout his career. Todd has the unwavering support of Senators Roger Wicker and Cindy Hyde-Smith. The wonderful people of the Great State of Mississippi (one of my favorites!), and the rest of the Fifth Circuit, can count on Todd to protect the Constitution and the Rule of Law. Congratulations Todd! President DONALD J. TRUMP

As far as Trump tweets go, this one is exceptionally lukewarm. Trump can’t even point to a single case that Buttler handled. Nothing about him being tough on crime or fighting for the Second Amendment or religious liberty. There’s nothing to brag about! By the way, Trump calls Judge Southwick “highly respected.” Did anyone show Trump Southwick’s opinion in the Alien Enemies Act case? Or any of the other en banc votes involving Trump 1.0 and Trump 2.0?

I have never heard of Todd Buttler. I spoke at the Jackson FedSoc chapter, and as best as I can recall, he did not attend. Buttler’s only claim to fame, which Trump does not mention, was representing the government in Olivier v. City of Brandon. There, his client arrested a street preacher for talking to people about the gospel. Butler argued opposite Allyson Ho. He lost 9-0, with a Kagan majority opinion. I understand lawyers have to take clients, but he could have easily handed this case off to someone else. There are dozens of regular SCOTUS practitioners who would have gladly taken this case, and maybe gotten more than zero votes. But Buttler kept it himself.

It is painfully obvious that Judge Southwick took senior status with the understanding that Todd Butler, his former law clerk, would take his seat. That offer was “sufficiently encouraging.” This is not a case where Southwick cited some pressing health concern which required his immediate resignation. He waited until after the Fifth Circuit heard several huge en banc cases last week, and will hang on till the confirmation of his successor, to make sure his preferred candidate gets through. Of course, he can always withdraw like Judge Wynn.

Moreover, Southwick timed his announcement for shortly before the midterms. Should the Republicans lose the Senate, this might be the last chance for Southwick to get his preferred replacement picked. Moreover, had Southwick announced he would take senior status any time over the past two years, opposition to Butler may have arisen on the right, which could have scuttled the nomination. (Remember in 2019, President Trump nominated another Mississippi judge for the Fifth Circuit, Halil Suleyman “Sul” Ozerden, but that nomination failed after Republicans opposed him. Southwick didn’t want his clerk to get Sullied)  The pick was timed, just right, to ensure his preferred candidate gets through, and before a potential flip in the Senate. Like I said, the fix was in.

Todd Butler is not Scott Stewart, the Mississippi Solicitor General who was successful in overruling Roe v. Wade. But we have to remember that all politics is local. For whatever reason, Stewart was not favored by the state senators. Moreover, Senator John Cornyn had no interested in fighting to claim the seat for Texas, where it would actually do some good. As Mike Fragoso noted back in May, leaving now ensures Ken Paxton won’t take the seat for Texas. The fix was in.

I’m sure the White House lawyers will say that it is better to replace Southwick with Butler than to roll the dice with whoever President Newsom picks. That may be prove to be right, but we have nothing to go on. On the en banc court, Southwick’s vote is virtually indistinguishable from a Biden nominee. We’ll see how Butler will vote. I’ve asked a few people in the know, and no one knows his judicial philosophy.

Butler is not alone with a family affair. Trump’s announcement of another district court seat in North Carolina noted that Phillip Aubert clerked for Terrency Boyle. Trump nominated the children of Eighth Circuit judges Benton and Shepherd for district courts in Missouri and Arkansas, respectively. President Biden nominated Judge Julia Gibbons’s law clerk, Kevin Ritz for the Sixth Circuit. Biden also nominated Judge Stranch’s former law clerk, but she did not make it through. Of course, Justice Breyer was replaced by his former clerk KBJ, and Justice Kennedy was replaced by Justice Kavanaugh.

Frankly, I find this entire idea of hereditary judicial sinecures very unsavory. From the President’s perspective, politics make sense. But from the judges’ perspective, nepotism does not.