The Butler didn’t do it.
Let’s be straightforward about Todd Butler’s nomination to the Fifth Circuit. He has shown nothing to demonstrate conservatism, regardless of what his conservative allies claim. Belonging to several bar associations hardly proves conservatism; in fact, a quick review of the Capital Area Bar Association based in Jackson reveals various DEI initiatives—even in Mississippi. Butler had nearly twenty years to dedicate himself to pro bono work for a conservative public-interest firm, but he did not. He could have contributed in government service, yet he did not. Again, let’s speak plainly: he was chosen because the White House reached some political settlement involving Judge Southwick and Senator Wicker.
Put judicial philosophy aside for a moment. How does Todd Butler’s record measure up against that of the other Fifth Circuit members? Here is the bottom line: over the last thirty years, every nominee to the Fifth Circuit possessed either government service experience or substantial involvement in public-interest litigation. Lawyers who practice privately are often told to gain some government exposure before pursuing federal judicial appointments. This is a common understanding, though there appears to be a notable exception when the payoff is sizable.
Both Biden appointees, Judges Douglas and Carrillo Ramirez, had previously served as federal magistrate judges.
The Trump selections encompassed a broad spectrum of public service. Judge Willett served on the Texas Supreme Court, in the Texas Attorney General’s Office, and within the Bush Administration. Judge Ho acted as Texas Solicitor General and was counsel to Senator Cornyn. Judge Duncan worked in the Louisiana Attorney General’s Office, the Texas Solicitor General’s Office, and defended clients at the Becket Fund. Judge Engelhardt was a member of the federal district court. Judge Oldham spent time in the Texas Attorney General’s Office and acted as counselor to the Governor. Judge Corey Wilson sat on the Mississippi Court of Appeals and served in the Mississippi House of Representatives. The newest nominee, Judge St. John, had a brief stint on the federal district court, but spent almost a decade at the Hamilton-Lincoln Law Institute and previously the Center for Class Action Fairness at the Competitive Enterprise Institute. (St. John also represented me in the near-landmark case of Blackman v. Gascho.)
Turning to the Obama nominees: Judge Graves sat on the Mississippi Supreme Court, and Judge Higginson held the role of Assistant United States Attorney before leading as chief of appeals in EDLA.
The George W. Bush nominees displayed substantial public service. Chief Judge Elrod served as a trial court judge in Houston. Judge Southwick had tenure as a district court judge after serving on the Mississippi Court of Appeals and as a JAG. Judge Richman (formerly Owen) served on the Texas Supreme Court. Judge Clement was a federal district court judge, and Judge Haynes presided as a trial court judge in Dallas.
The Clinton nominees followed a similar pattern. Judge Dennis served on the Louisiana Court of Appeals and later ascended to the Louisiana Supreme Court. Judge Stewart also held a position on the Louisiana Court of Appeals.
By any objective measure, Butler does not align with the judicial-philosophy profile of the prior Trump appointees. He certainly does not reflect the pattern of three decades of Fifth Circuit nominees across five administrations, all of whom had government service or public-interest experience. (And no, clerking does not count.)
Let’s be frank about the reality before us: a tainted Senate bargain that effectively grants a hereditary sinecure.
I understand Butler’s confirmation hearing is scheduled for after the midterms, assuming the nomination isn’t withdrawn beforehand.
