I appreciate the perspective of Mike Fragoso, who knows more about judicial nominees than just about anyone else.
asserted
who → appreciate → anyone
Mike is clearly right that there is a risk of not letting Judge Southwick hand his sinecure to his law clerk.
asserted
Southwick → be → clerk
Southwick can simply not take senior status under President Trump.
asserted
Southwick → take → 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.
asserted
Southwick → scuttle → status
(Southwick's already fragile reputation would be irreparably tarnished by such a move.)
asserted
reputation → tarnish → move
If so, Southwick could either take senior status under a Democratic President, or just keep serving until his seat becomes otherwise vacant.
uncertain
seat → take → President
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.
asserted
it → go → Reeves
I can certainly see the logic here.
asserted
I → see → logic
But I'm not sure it works.
asserted
it → work → ?
For starters, we should remember that more than 90% of the Fifth Circuit cases are unanimous.
asserted
% → remember → cases
What actually matters, of course, is the other 10% of cases.
asserted
matters → matter → cases
What especially matters are the en banc disputes where the seventeen-member court is usually divided on a raze-thin margin.
asserted
court → matter → 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.
asserted
Southwick → go → appointees
I'm sure there are exceptions I am forgetting, but in cases that matter, Judge Southwick is virtually indistinguishable from Judge Higginson.
asserted
Southwick → be → Higginson
(And for what it's worth, I deeply respect Judge Higginson as the leader of the Fifth CIrcuit's progressive wing.)
asserted
I → respect → wing
In 2022, I did a deep dive into Fifth CIrcuit en banc votes.
asserted
I → do → 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.
asserted
who → compare → Jones
Judge Southwick had an EHJ score of zero.
asserted
Southwick → have → zero
(Judge Wilson's score was as low as it was because he had only recently been confirmed to the bench.)
asserted
he → confirm → bench
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.
asserted
I → get → room
Lest you think I pull my punches in person, I don't.
asserted
I → think → person
He was a gentleman, and took it graciously.
asserted
He → take → it
Let's assume that Judge Butler is not Sullied, and he is confirmed.
asserted
he → let → ?
Let's also assume that Judge Butler will be a jurisprudential clone of Judge Southwick.
asserted
Butler → assume → Southwick
Now, the 10% of the cases that matter will have two center-left members.
asserted
that → matter → members
And if Judge Southwick keeps a full caseload, he is likely to sit on several en banc cases each year.
asserted
he → keep → cases
Does anyone think Butler will vote against he person who gave him his sinecure?
asserted
who → think → sinecure
Judge Butler's confirmation would arguably make some of the 9-8 victories for conservatives would split 9-9.
asserted
victories → make → conservatives
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.
asserted
Southwick → prefer → 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.
asserted
Reeves → suppose → that
I much prefer this alternative.
asserted
I → prefer → alternative
If anyone has anything positive to send me about Judge Butler, please do.
asserted
anyone → have → Butler
I've spoken to several people in Mississippi, and all I hear is "trust me, he's conservative."
asserted
he → speak → me
I've heard that before.
asserted
I → hear → that
Has he ever done anything conservative?
asserted
he → do → anything
Has he participated in any conservative civic group (paying FedSoc dues doesn't count)?
asserted
paying → participate → dues
All I see is a Southwick acolyte who criticizes Justice Scalia and attacks street preachers as domestic terrorists.
asserted
who → see → terrorists
The Aporia
