I would rather see Judge Southwick cast a single vote rather than two.
I value the insight of Mike Fragoso, a person who knows more about judicial nominees than nearly anyone else. He is plainly correct that there is a danger in denying Judge Southwick the chance to pass his sinecure on to his law clerk. Southwick could simply opt out of senior status under President Trump. In fact, if Butler’s nomination is blocked, Southwick might follow the disreputable route of Judge Wynne and withdraw his request for senior status. (Southwick’s already delicate reputation would be permanently harmed by such a move.) If that happens, Southwick could either move to senior status under a Democratic president, or continue serving until his seat becomes vacant for other reasons.
The argument is that it is preferable to have even a somewhat questionable Republican-appointed judge on the Fifth Circuit than a clearly liberal figure like Carlton Reeves. I can see the logic, to be sure. Yet I remain unconvinced that it actually holds up.
First, we should note that more than 90% of Fifth Circuit decisions are unanimous. In those instances, there is little to no meaningful distinction between Edith Jones and Steve Higginson. In such cases, whether the court features Southwick, Butler, or Reeves, the result would be the same.
What truly matters, of course, is the remaining 10%. The en banc disputes matter most, where the seventeen-member court is typically divided by razor-thin margins.
For at least the last decade, I believe that in nearly every major ideological en banc case, Judge Southwick has sided with the Democratic-appointed judges. I suspect there are exceptions I am overlooking, but in the consequential matters, Judge Southwick’s voting pattern is almost indistinguishable from Judge Higginson. (And for what it’s worth, I have a deep regard for Judge Higginson as the leader of the Fifth Circuit’s progressive wing.)
In 2022, I conducted a thorough examination of Fifth Circuit en banc votes. I compared how the Republican-appointed judges vote against Judge Edith H. Jones, a longstanding conservative pillar of the circuit. Judge Southwick posted an EHJ score of zero. (Judge Wilson’s score was similarly low because he had only recently taken the bench.)
Southwick’s figures in that slide were drawn from the Biden Administration. It has grown even direr under Trump 2.0
Indeed, I delivered this paper at the Jackson Chapter of the Federalist Society, with Judge Southwick present in the audience. If you assume I will soften my stance in person, you would be mistaken. He conducted himself as a gentleman and accepted the discussion with good grace. And no, Todd Butler was not in attendance.
Let us suppose that Judge Butler is not tarnished, and that he receives confirmation. Suppose further that Butler operates as a jurisprudential twin of Judge Southwick. In that case, the ten percent of cases that matter will feature two center-left members. If Southwick maintains a full docket, he would likely participate in several en banc matters each year. Does anyone believe Butler would vote against the very person who secured his seat? (The two are reportedly close friends.) Again, two center-left members would be present. Butler’s confirmation could turn some conservative 9–8 rulings into 9–9 splits. How does that improve the current situation?
If this premise is acceptable, I would far prefer a 75-year-old Southwick casting a single vote than a scenario in which Southwick and a younger Butler together cast two votes.
The alternative, I suppose, is for the 75-year-old Southwick to continue casting 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 find that alternative far more appealing.
If anyone has anything positive to share about Judge Butler, please do. I’ve spoken with several people in Mississippi, and the refrain I hear is “trust me, he’s conservative.” I’ve encountered that claim before. Has he ever demonstrated conservatism in action? Has he joined any conservative civic group (simply paying FedSoc dues doesn’t count)? All I observe is a Southwick devotee who criticizes Justice Scalia and labels street preachers as domestic terrorists.
