How Judges Select Law Clerks as Replacements

Back in December 2017, I argued in National Review that judges appointed by Republicans ought to consider moving to senior status so that President Trump could appoint replacements. The piece drew a strong reaction from many in the judiciary. A number of judges spoke to me privately, and Judge Leslie Southwick of the Fifth Circuit chose to respond directly in a Notre Dame Law Review article. Here is a portion of that 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 have kept that article in mind during the nine years since, as Judge Southwick continued to serve in active status. Southwick wrote an entire book about his arduous path to the Fifth Circuit appointment. He delivered a talk at the Houston FedSoc years ago, and I was struck by someone so focused on securing a lifelong sinecure that it seemed to define him. I viewed Judge Southwick as a man of principle who would hold his post until he could hold it no longer, and would not step down for considerations beyond his convictions. While I often disagree with his rulings, I at least credited him for staying true to his beliefs.

Undoubtedly the White House tried again to nudge Southwick toward senior status. In 2017, he did not find that entreaty “sufficiently encouraging.” It appears times have shifted since then.

On Tuesday, September 28, Judge Southwick informed President Trump that he intends to take senior status once his successor is confirmed. Barely two days later, the President announced a nominee to fill the vacancy. The arrangement seemed preordained.

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’s tweet goes, this one is unusually tepid. Trump can’t even point to a single case that Butler handled. There’s nothing about him being tough on crime or fighting for the Second Amendment or for religious liberty. There’s nothing to boast 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’ve never heard of Todd Butler. I spoke at the Jackson FedSoc chapter, and as best as I recall, he did not attend. Butler’s only notable credential, which Trump does not mention, was representing the government in Olivier v. City of Brandon. There, his client arrested a street preacher for speaking to people about the gospel. Butler argued against Allyson Ho. He lost 9-0, with a Kagan-majority opinion. I understand lawyers take clients, but he could have easily handed this case off to someone else. Dozens of regular SCOTUS practitioners would have gladly taken the case, and perhaps earned more than zero votes. But Butler kept it himself.

It is painfully evident that Judge Southwick accepted senior status with the understanding that Todd Butler, his former law clerk, would take his seat. That invitation was “sufficiently encouraging.” This is not a case where Southwick cited a pressing health concern forcing immediate resignation. He waited until after the Fifth Circuit heard several major en banc cases last week and will hold on until his successor is confirmed to ensure his preferred candidate gets through. Of course, he could always withdraw like Judge Wynn.

Moreover, Southwick timed his announcement just before the midterms. If the Republicans lose the Senate, this might be the last opportunity for Southwick to secure his preferred replacement. Moreover, had Southwick announced his move to senior status anytime in the past two years, opposition from the right to Butler might have arisen, potentially scuttling the nomination. (Recall that in 2019, President Trump nominated another Mississippi judge for the Fifth Circuit, Halil Suleyman “Sul” Ozerden, but that nomination failed due to Republican opposition. Southwick did not want his clerk to be sullied.) The pick was timed precisely to ensure his favored candidate advances before any possible Senate shift. Like I said, the fix was in.

Todd Butler is not Scott Stewart, the Mississippi Solicitor General who managed to overrule Roe v. Wade. Yet, we must remember that politics is local. For reasons unknown, Stewart was not favored by the state senators. Additionally, Senator John Cornyn showed little interest in waging a Texas-based fight to claim the seat there, where it might have real impact. As Mike Fragoso noted back in May, leaving now prevents Ken Paxton from taking the seat for Texas. The fix was in.

I expect the White House lawyers will argue that replacing Southwick with Butler is preferable to leaving the seat to chance with whatever candidate Governor Newsom might choose. That argument might prove valid, but we have nothing substantial to go on. On the en banc court, Southwick’s voting pattern is hardly distinguishable from that of a Biden nominee. We will have to see how Butler votes. I’ve consulted a few insiders, and no one can tell me his judicial philosophy.

But Butler’s situation isn’t isolated by distance or family ties. Trump’s announcement of another district court vacancy in North Carolina noted that Phillip Aubert clerked for Terrence Boyle. Additionally, Trump has nominated the offspring of Eighth Circuit judges Benton and Shepherd for district courts in Missouri and Arkansas, respectively. President Biden nominated Judge Julia Gibbons’s former law clerk, Kevin Ritz, to the Sixth Circuit. Biden also put forward Judge Stranch’s former law clerk, but she did not advance. And of course, Justice Breyer was replaced by his former clerk KBJ, and Justice Kennedy by Justice Kavanaugh.

Frankly, I find the entire notion of hereditary judicial sinecures profoundly unpalatable. From the President’s viewpoint, politics can justify such moves. But from the perspective of judges, nepotism is hard to defend.