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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Comparing the Credentials Of Three Decades of Fifth Circuit Nominees
The Butler didn't do it.
I think we should just be candid about Todd Butler's nomination to the Fifth Circuit. He has done nothing to prove his conservatism, despite what his conservative friends have said. Being a member of multiple bar associations is almost definitive proof that he is not conservative. I just did a quick scan through the Capital Area Bar Association from Jackson and found numerous DEI programs--yes, even in Mississippi. Butler had nearly two decades to perform pro bono work for a conservative public interest firm, but he didn't. He could have served in government, but he didn't. Again, we should just be candid. He was selected because the White House accepted some sort of political deal involving Judge Southwick and Senator Wicker.
Forget judicial philosophy for a minute. How does Todd Butler's record compare with that of the other members of the Fifth Circuit? I'll put the bottom line up front: over the past three decades, every nominee to the Fifth Circuit had either government service or extensive experience doing public interest litigation. Lawyers in private practice often inquire about federal judicial appointments, and they are frequently told to get some government experience first. This is something people understand, but the rule does seem to have an exception when the price is right.
Both of the Biden nominees, Judges Douglas and Carrillo Ramirez, previously served as federal magistrate judges.
The Trump appointees had a wide range of government service. Judge Willett served on the Texas Supreme Court, in the Texas Attorney General's Office, and in the Bush Administration. Judge Ho served as Texas Solicitor General and served as counsel to Senator Cornyn. Judge Duncan worked in the Louisiana Attorney General's Office, the Texas Solicitor General's Office and was a litigator at the Becket Fund. Judge Engelhardt served on the federal district court. Judge Oldham worked in the Texas Attorney General's Office and was counselor to the Governor. Judge Corey Wilson served in the Mississippi Court of Appeals and in the Mississippi House of Representatives. The newest nominee, Judge St. John had a (brief) stint on the federal district court, but spent nearly a decade working for the Hamilton-Lincoln Law Institute and before that the Center for Class Action Fairness at the Competitive Enterprise Institute. (St. John was one of my lawyers in the almost-landmark case of Blackman v. Gascho.)
Now, the Obama nominees. Judge Graves served on the Mississippi Supreme Court and Judge Higginson was an Assistant United States Attorney and later served as chief of appeals in EDLA.
The George W. Bush nominees had extensive public service. Chief Judge Elrod served as a trial court judge in Houston. Judge Southwick was a district court judge, before that served on the Mississippi Court of Appeals, and was a JAG. Judge Richman (formerly Owen) served on the Texas Supreme Court. Judge Clement was a federal district court judge. Judge Haynes was a trial court judge in Dallas.
Same for the Clinton nominees. Judge Dennis served on the Louisiana Court of Appeals and later the Louisiana Supreme Court. Judge Stewart also served on the Louisiana Court of Appeals.
By any objective measure, Butler does not fit the mold of the prior Trump appointees in term of judicial philosophy. He certainly does not fit the mold of three decades of Fifth Circuit nominees across five presidencies. They all had prior government service or public interest experience. (And no, clerking does not count.)
Let's just be candid about what we have here: a sordid Senate deal to convey a hereditary sinecure.
I understand Butler's confirmation hearing is scheduled for after the midterms, assuming the nomination is not withdrawn beforehand.
Judge Temporarily Blocks Dep't of Education Release of Names of Individual Foreign Donors to U.S. Colleges
From Judge Tanya Chutkan (D.D.C.) Thursday evening in Ass'n of Am. Univ. v. U.S. Dep't of Ed.:
Section 117 of the Higher Education Act requires universities to report foreign gifts and contracts to the Department of Education, making those reports publicly available. Since 2020, the Department has also collected the names of individual foreign donors while stating that it would not publish them. In June 2026, the Department reversed course, announcing that it would publish those names. After initially publishing the names of 92 Institutional donors, it set October 2, 2026, as the date for publishing the names of all donors.
The court granted a TRO against this release:
To start, AAU has shown a likelihood of success on its claim that the [June 2026] Publication Decision is arbitrary and capricious [and thus a violation of the Administrative Procedure Act]; the court need not reach its remaining claims at this stage. When an agency changes position, it must "display awareness that it is changing position" and give "good reasons for the new policy." Where the prior policy "has engendered serious reliance interests," the agency must account for them.
For six years, across two information collection requests, Defendants told institutions—in writing—that it would not include donor names and addresses in the public disclosure report. Plaintiff alleges that institutions and donors relied on those assurances in making and accepting donations.
The only attempt at an explanation Defendants proffer for their policy change is an asserted statutory mandate to disclose: they state without elaboration that "the statutory inspection requirement outweighs countervailing confidentiality interests." Defendants' explanation also appears internally inconsistent, characterizing publication as statutorily required, yet treating the withholding of addresses as a discretionary "policy matter."
The Department may ultimately be able to justify its decision. But the present record shows that AAU is likely to succeed in establishing that the Department "entirely failed to consider an important aspect of the problem."
Justice Alito on Deciding When to Retire from the Court
Justice Samuel Alito offers candid comments to Jan Crawford of CBS News.
On Friday, CBS News released several clips from Jan Crawford's interview with Justice Samuel Alito. In these clips Justice Alito discusses the Dobbs decision, Presidential comments about the Court, being recognized in public, and how he thinks about retirement from the Court. Here's the retirement clip:
And here's the clip on comments made by Presidents about the Court:
Today in Supreme Court History: October 3, 1990
10/3/1990: Justice David Souter takes the oath.
Open Thread
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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Water rights absurdities, ponderous parking ordinances, and fast trains.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Last year, in Rivera v. Borough of Pottstown, a Pennsylvania appeals court ruled that individualized suspicion is required before gov't officials can get a warrant to search homes for code violations. Which was great! But now the borough is demanding that renters submit to suspicionless searches by private inspectors. So, folks, we're doing Rivera v. Pottstown II.
New on the Short Circuit podcast: We place our bets—sorry, predictions—on whether Kalshi is on the up-and-up when it comes to Indian gaming and on prediction market regulation more generally.
- German company wins bid to supply trains (that can travel >186 mph) for new railroad from Rancho Cucamonga, Calif. to Las Vegas. (The company's trains currently travel 220 mph.) The first two trains will be built in Germany with American workers on hand for training—and then eight more Made in America. Losing bidder (whose trains "presently have a maximum speed of 160 miles per hour"): That's not Buy America enough. D.C. Circuit: It is.
- Rhode Island man jumps out of second-story window to evade arrest, breaking his feet and ankles; he claims he has to hobble around prison without doctor-recommended accommodations. Prison officials: The state tort claims act may waive sovereign immunity for "all actions of tort," but the state supreme court has never definitively said whether that applies to discrimination claims. First Circuit: We checked in with the Rhode Island Supreme Court on this, and they seemed pretty definitive. Read More
Justice Gorsuch on Abuse of Emergency Powers
In a recent talk, he decried a situation where "everything is an emergency."
In a recent "fireside chat" before the Tenth Circuit conference, Supreme Court Justice Neil Gorsuch decried the trend towards abusive use of emergency powers (see also this slightly more detailed account):
"Everything is an emergency," he said…. "We've moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we've moved it over to the executive branch. And I just don't think that's a recipe for a healthy democracy over the long term."
Gorsuch is absolutely right about this. We should not allow emergency powers intended to be used only in extreme situations to become a blank check that the executive can wield at will. Sadly, we have increasingly moved in that dangerous direction. Presidents of both parties have abused emergency powers, though Trump - in his second term - has been a particularly egregious offender.
While much of the blame for this state of affairs rests with Congress and the executive branch, Gorsuch and other judges can help by rigorously enforcing constitutional and statutory constraints on emergency powers. As I outlined in more detail in a Dispatch article published last year, courts should engage in strong judicial review of both the meaning of terms like "emergency," "invasion," and "unusual and extraordinary threat," and whether the facts on the ground proves that these dangers are actually present (thereby justifying invocation of extraordinary emergency powers to deal with them). I also rebut the argument that courts should defer to the executive on these kinds of issues, because of the supposedly superior expertise of the latter.
The Supreme Court has in fact constrained executive abuse of emergency powers in several important cases, under both Biden and Trump. Notable examples include the IEEPA tariff case (which I helped litigate) and the Illinois National Guard case (both under Trump), and Biden v. Nebraska (2023) (in which the Court rightly struck down Biden's attempt to use Covid emergency powers as a pretext to forgive over $400 billion in student loan debt). Last year, the Supreme Court also blocked Trump's efforts to swiftly deport Venezuelans under the Alien Enemies Act, a statute that can only be used in the event of an "invasion" or a "predatory incursion" on US territory by a foreign government.
But in each of these cases, the Court never ruled on whether an emergency, "invasion," or other extraordinary circumstance justifying the use of emergency powers was actually present. It instead ruled against the executive on other grounds. In one of the "shadow docket" cases involving the Alien Enemies Act, the Court did rule that the meaning of "invasion" and other terms in the Act is subject to judicial review. But it did not address the question of deference on factual issues. Thus, the extent to which the Court is willing to constrain abuses of emergency powers remains at least somewhat unclear.
To his credit, back in 2022, Justice Gorsuch broke with the other conservative justices, and (along with the three liberals) dissented from a procedural decision that, in effect, required Biden to continue the abusive use of Covid emergency powers as a tool for immigration restrictions. As Gorsuch put it in his dissent, "courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency."
Judicial review cannot fully solve the problem of abusive use of emergency powers on its own. As noted in my Dispatch article, Congress needs to step in and take measures such as setting strict time limits on executive-declared invocations of emergencies. But the judiciary can, nonetheless, play a valuable role in preventing extraordinary emergency powers from becoming a blank check the president can use whenever he wants.
And, while we cannot rely on the judiciary alone to police abuses of emergency powers, we should also avoid the opposite error of relying solely on Congress. As Gorsuch points out in his compelling concurring opinion in the tariff case, it is very difficult for Congress to pull back delegations of power, if courts interpret them overbroadly:
When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent's authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn't?) will have a strong incentive to veto legislation aimed at returning the power to Congress. Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto. But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.
That is all the more reason for the judiciary to rigorously enforce statutory and constitutional constraints on the scope of delegated powers - especially when we are talking about sweeping emergency powers that endanger civil liberties, threaten the stability of the economy, and have other potentially massive effects.
If anyone has access to the full text of Gorsuch's talk at the Tenth Circuit conference, please send it to me, if you can.
NOTE: For those keeping score, I also called for rigorous judicial review of invocations of emergency powers under Biden. See, e.g., here and here.
How Would A Judge Butler Actually Affect The Fifth Circuit?
I would prefer Judge Southwick to have one vote rather than two votes.
I appreciate the perspective of Mike Fragoso, who knows more about judicial nominees than just about anyone else. Mike is clearly right that there is a risk of not letting Judge Southwick hand his sinecure to his law clerk. Southwick can simply not take senior status under President 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. (Southwick's already fragile reputation would be irreparably tarnished by such a move.) If so, Southwick could either take senior status under a Democratic President, or just keep serving until his seat becomes otherwise vacant.
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. I can certainly see the logic here. But I'm not sure it works.
For starters, we should remember that more than 90% of the Fifth Circuit cases are unanimous. For these cases, there is no meaningful difference between Edith Jones and Steve Higginson. For these cases, whether it is Southwick or Butler or Reeves, the outcome would be the same.
What actually matters, of course, is the other 10% of cases. What especially matters are the en banc disputes where the seventeen-member court is usually divided on a raze-thin 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. I'm sure there are exceptions I am forgetting, but in cases that matter, Judge Southwick is virtually indistinguishable from Judge Higginson. (And for what it's worth, I deeply respect Judge Higginson as the leader of the Fifth CIrcuit's progressive wing.)
In 2022, I did a deep dive into Fifth CIrcuit en banc 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. Judge Southwick had an EHJ score of zero. (Judge Wilson's score was as low as it was because he had only recently been confirmed to the bench.)
Southwick's numbers in that slide were from the Biden Administration. 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. Lest you think I pull my punches in person, I don't. He was a gentleman, and took it graciously. And no, Todd Butler was not there.
Let's assume that Judge Butler is not Sullied, and he is confirmed. Let's also assume that Judge Butler will be a jurisprudential clone of Judge Southwick. Now, the 10% of the cases that matter will have two center-left members. And if Judge Southwick keeps a full caseload, he is likely to sit on several en banc cases each year. Does anyone think Butler will vote against he person who gave him his sinecure? (The two are apparently very good friends as well.) Again, there will now be two center-left members. Judge Butler's confirmation would arguably make some of the 9-8 victories for conservatives would split 9-9. How is that any better than the status quo?
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.
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. I much prefer this alternative.
If anyone has anything positive to send me about Judge Butler, please do. I've spoken to several people in Mississippi, and all I hear is "trust me, he's conservative." I've heard that before. Has he ever done anything conservative? Has he participated in any conservative civic group (paying FedSoc dues doesn't count)? All I see is a Southwick acolyte who criticizes Justice Scalia and attacks street preachers as domestic terrorists.
Todd Butler Compared Street Preacher In Supreme Court Case To "Domestic Terrorism"
The case was a dry dispute about jurisdiction. There was no reason to impugn the preacher's faith.
I continue to dig through the record of Todd Butler, the new nominee to the Fifth Circuit. I wonder if anyone else did?
Butler's greatest claim to fame is arguing Olivier v. City of Brandon before the Supreme Court. The questions presented were fairly technical:
1. Whether, as the Fifth Circuit holds in conflict with the Ninth and Tenth Circuits, this Court's decision in Heck v. Humphrey bars § 1983 claims seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional.
2. Whether, as the Fifth Circuit and at least four others hold in conflict with five other circuits, Heck v. Humphrey bars § 1983 claims by plaintiffs even where they never had access to federal habeas relief.
The actual facts were not important to the question presented. These were pure questions of law. Yet Butler's briefs took gratuitous shots at Gabe Olivier, a street preacher who was arrested by the City of Brandon.
Butler's brief in opposition to certiorari compared street preaching to "domestic terrorism."
Petitioner presents himself as "a Christian" who wishes to peacefully "share[] his faith on public streets[.]" Pet.6. He likewise did so in the district court, claiming he does not hurl insults and speaks only in a conversational tone to people walking by. ROA.21. Video evidence proves otherwise. On multiple occasions, Petitioner has yelled insults at event attendees, including "whore," "Jezebel," "fornicator," "drunkards," and "sissy." ROA.295-301. The conduct caused disturbances that would have resulted in violence had law enforcement not intervened. ROA.293-301.
Group protests are his normal course of action, with individuals in his group having been found guilty of simple assault for harassing citizens and one court even describing their actions as "domestic terrorism." ROA.398-424. The group has targeted, followed, hurled insults at, spit on, harassed individuals, and, at one point, "began closing in" on a couple.
This passage is beyond insulting. He put "Christian" in scare quotes, as if to doubt Olivier's faith. And the "domestic terrorism" charge is extremely divisive. Again, none of these points were necessary in a boring case about Heck v. Humphreys. But Butler felt compelled to attack the plaintiff.
Olivier's reply brief, filed by Allyson Ho at Gibson Dunn and First Liberty, fired back:
The city begins (at 7-8) by disparaging Olivier's evangelism and states that while he "presents himself as 'a Christian'" the "evidence proves otherwise." But "no official, high or petty, can prescribe what shall be orthodox in * * * religion." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Contrary to the city's over-hyped rhetoric, Olivier "identifies sins he believes are relevant for the community at large" to share the good news that Jesus Christ saves people from their sins.
Olivier is exactly right. The government cannot define who is religious and who is not. If you believe in the Gospel, you have an obligation to tell others your views. What does Butler think preachers do?
One might have thought after the cert grant, Butler would step back from this cliff. After all, he needs votes from Justices Alito and Thomas. But he does not.
The Respondent brief again questions whether Olivier was evangelizing, and repeats the"domestic terrorism" claim:
After it opened, Petitioner traveled to the Amphitheater with a group to, in his words, evangelize. J.A.5. The group's evangelism included using a loudspeaker to call patrons "whores," "Jezebels," "grody," "nasty," "sissies," and other derogatory names.1 Pet.App.21a-23a. They held large signs, some of which depicted aborted fetuses. Pet.App.29a.
FN1: Courts have equated the group's more aggressive conduct, including spitting on people, to "domestic terrorism." C.A.ROA.414.
The Petitioner's reply brief shot back sharply:
The city disparages Olivier's evangelism with inaccurate, unsupported accusations, even equating his peaceful expression with "domestic terrorism." Resp. Br. 3 n.1 (citing C.A. ROA 414). Olivier vigorously disputes this characterization. The prosecution cited by the city involved the conduct of other people in a different location. That prosecution doesn't allege that Olivier participated in the purportedly "aggressive conduct," and there's no support for the city's baseless implication that Olivier "spit[ ] on people." Ibid.; see J.A. 26-27.
Many of President Trump's nominees have done favorable things for religious liberty. But here, Butler actively attacks a Christian, questions his evangelism, and compares him to a domestic terrorist.
Remember when during the Biden Administration parents at school board meetings were called "domestic terrorists"? Senator Hawley ripped Attorney General Garland about this scandal.
Much more to come.
Red Mass Explosive Man Asked S. Ct. to "Remove Arizona from the United States" and "Declare It a 'Foreign Enemy'"
From a Justice Department press release Monday:
Louis Geri, 42, of Vineland, New Jersey, was sentenced today in U.S. District Court to 70 months in prison in connection with threatening to detonate more than 100 homemade explosive devices on the steps of St. Matthew's Cathedral during the annual Red Mass attended by U.S. Supreme Court Justices and other senior government officials, announced U.S. Attorney Jeanine Ferris Pirro.
Geri pleaded guilty March 5 before Judge Randolph M. Moss to a count of Hobbs Act extortion by wrongful use of force, violence, or fear, and to a count of possession of an unregistered firearm (destructive device)….
According to the plea agreement, on the evening of Oct. 4, 2025, Geri rode his motorcycle to St. Matthew's Cathedral, on the 1700 block of Rhode Island Ave. NW, and erected a tent on the church's front steps. Inside the tent, he assembled more than 100 explosive devices he had manufactured from materials—including nitromethane, magnesium, charcoal, and thermite—purchased in Arkansas and assembled in Virginia. He also carried a nine-page list of written demands.
Salman Rushdie Attempted Murder Case: Court Upholds Jury Verdict …
finding defendant was acting under direction of Hezbollah.
From Judge Richard Arcara (W.D.N.Y.) yesterday in U.S. v. Matar:
Following a jury trial, Defendant Hadi Matar was convicted of each charge contained in a three-count indictment. Count 1 charged Matar with attempting to provide material support to a designated foreign terrorist organization ("FTO")—that is, Hizballah, in violation of 18 U.S.C. § 2339B(a)(1). Count 2 charged Matar with committing an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a)(1)(A). Count 3 charged Matar with providing material support to terrorists, in violation of 18 U.S.C. § 2339A. The charges against Matar stemmed from his stabbing of the author Salman Rushdie … at the Chautauqua Institution on August 12, 2022 ….
Matar moved for a judgment of acquittal, but the court said no. Here's an excerpt from the discussion of why Matar was acting sufficiently under the direction of a foreign terrorist organization (which is required under the relevant federal statute) rather than just independently—if he had been acting independently, that would have still been attempted murder punishable under state law, but likely not a violation of these statutes:
As charged in Count 1, [18 U.S.C. § 2339B] criminalizes attempting to provide "material support or resources," including "personnel" and "services," to a designated foreign terrorist organization. Matar asserts that Count 1 should be "set aside because the Government did not prove that Defendant provided material support to Hizballah under the controlling rule announced in United States v. Ullah [2d Cir. 2026]." According to Matar, the "controlling issue" is "whether the alleged 'personnel' and 'services' were legally provided to Hizballah at all."
Specifically, seizing upon the Second Circuit's recent decision in Ullah, Matar maintains that while he, much like Ullah, was inspired by, was ideologically aligned with, and was intent on benefitting an FTO, such evidence was "not enough" to establish that he was acting under the direction and control of (as required under the "personnel prong")—or acting in coordination with or at the direction of (as required under the "services prong")—such FTO….
Jews and Discrimination Based on Religion or Based on Ethnicity?
The Civil Rights of Act of 1866 (42 U.S.C. § 1981) was interpreted in the late 1960s as prohibiting discrimination even in private contracts based on race. In 1991, Congress expressly included that interpretation in the statute. Because in the late 1800s, "race" was understood to include what today might refer to "ethnicity" (e.g., German, Arab, Jewish), the Court concluded that § 1981 extends to such discrimination based on ethnicity.
But there is no statute generally banning discrimination in contracting (as opposed to specific kinds of contracts, like employment, housing, or public accommodation) based on religion. Section 1981, by its terms, simply doesn't cover religious discrimination.
This was the key behind Domanic v. Christian Bros. Automotive Corp., decided Wednesday by Fifth Circuit Judge Stuart Kyle Duncan, joined by Judges Andrew Oldham and Cory Wilson; an excerpt:
Christian Brothers Automotive Corporation is a faith-based auto-repair business that franchises only to Christians. All of its more than 250 franchisees—a group which includes some ethnic Jews—are professing Christians. When the company refused to franchise to Evan Domanic, who is an ethnic and religious Jew, Domanic sued for racial discrimination under 42 U.S.C. § 1981….
Defamation by Retroactive Scrubbing of Coach from Roster?
From Monday's decision by Judge Samantha Elliott (D.N.H.) in Wood v. Dartmouth College:
Plaintiff Justin Wood was Dartmouth University's Men's Cross-Country coach for nearly two years, until August 2022. He alleges that Porscha Dobson Harnden, who served as the Director of Dartmouth Track & Field and Cross Country during his tenure and for roughly two years thereafter, made defamatory remarks about him to third parties after he left….
Consistent with this standard of review, the court assumes that the following facts taken from the amended complaint are true. Dartmouth hired Wood as the Head Coach of its Men's Cross-Country Team on November 16, 2020. In her capacity as the Marjorie & Herbert Chase '30 Director of Dartmouth Track & Field and Cross Country, Harnden was Wood's supervisor. During his employment, Wood reported and objected to certain of Harnden's practices, including allegedly falsifying COVID-19 testing documentation to allow sick athletes to practice and compete, and potential admissions fraud. On August 19, 2022, Wood and Dartmouth entered into a separation agreement and a general release agreement (separation agreement)….
The court, among other things, allowed Wood's defamation claims to go forward as to the retroactive removal of his name from past online rosters:
At some point in 2024, Dartmouth removed Wood's name from the online rosters for the 2021 Men's Cross-Country team (for which he was the head coach), and the 2020-2021 and 2021-2022 Men's Track & Field Team (for which he was the assistant coach). During an interview with Tufts University, Wood's interviewer had printed the relevant pages from Dartmouth's website. His missing name became an issue because Wood's wife, who was a volunteer, had a profile while Wood did not. Dartmouth's website continues to list coaching positions for other former employees Dartmouth terminated….
Today in Supreme Court History: October 2, 1967
10/2/1967: Justice Thurgood Marshall takes the oath.
Open Thread
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Todd Butler's Problematic Publications
He consistently attacks Justice Scalia, as advancing his "own political agenda."
After dinner this evening, I did a bit of research into the publications of Todd Butler, President Trump's latest nominee to the Fifth Circuit. Despite serving in private practice for nearly two decades, Butler has published several articles. He has also served as an Adjunct Professor at the University of Mississippi Law School. (I am not sure what he taught).
Here are some of his publications:
- A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 HOLY CROSS J.L. & PUB. POL'Y 47, 64 (2008).
- RECIPE FOR DISASTER: ANALYZING THE INTERPLAY BETWEEN THE CASTLE DOCTRINE AND THE KNOCK-AND-ANNOUNCE RULE AFTER HUDSON V. MICHIGAN, 27 Miss. C. L. Rev. 435 (2008).
- HECK, EXCESSIVE FORCE, AND THE FIFTH CIRCUIT, 29 Miss. C. L. Rev. 529 (2009)
- FOREWORD: CELEBRATING THE LIFE AND LEGACY OF THURGOOD MARSHALL, 27 Miss. C. L. Rev. 289 (2008)
- JUDGE SOUTHWICK THE OPINION WRITER, 37 Miss. C. L. Rev. 43 (2018)
- AN INTERVIEW WITH CHIEF JUDGE SHARION AYCOCK, 39 Miss. C. L. Rev. 413 (2021)
I haven't studied the articles carefully, but one through line seems to be a criticism of Justice Scalia.
For example, in his student note, Butler favors Justice Breyer's dissent over Justice Scalia's majority opinion in Hudson v. Michigan:
While Justice Scalia applied the Fourth Amendment balancing test by starting with social costs, Justice Breyer turned first to deterrence.Considering factors such as time, recoverable damages and money spent on litigation, Justice Breyer argued that § 1983 suits are an insufficient deterrence.Also, he swiftly dismissed the notion that "better trained police" provide adequate deterrence.. . . .
Justice Breyer's dissenting opinion in Hudson v. Michigan aptly noted that "the Court destroy[ed] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement" when it refused to remedy the violation with the exclusionary rule.161 While Justice Scalia offered several deterrent substitutes, each is insufficient to ensure law enforcement compliance. . . .
Likewise, internal police procedures are inadequate to deter non-compliance with the knock-and-announce rule. Although Justice Scalia came to the opposite conclusion after noting the "increasing professionalism" of police officers,he failed to discern the principle reason why this increasing professionalism actually exists. As one commentator noted, "the increasing professionalism of police departments that has resulted in more effective internal discipline was itself a result of the exclusionary rule."It follows that if the underpinning is removed, the increasing professionalism will also disappear.
Butler is also very critical of the castle doctrine.
Importantly, critics insist that the Castle Doctrine creates a "trigger-happy" mentality in citizens' minds.The laws receive extensive media coverage and the phrase "shoot first, ask questions later" is often used to describe the Castle Doctrine.One commentator noted that "[the doctrine] sends a very confusing message to the citizens . . . about when they can use lethal force with impunity.". . .
The Supreme Court's decision in Hudson v. Michigan will bolster violent encounters between police officers and homeowners. Although none of the Justices referenced the Castle Doctrine in their opinions, the importance of the doctrine is implicit when considering the practical effects of the case. By removing the incentive to comply with the knock-and-announce rule, the Court left homeowners vulnerable to surprise encounters with law enforcement officers. This vulnerability poses significant problems for both police officers and citizens because of the trigger-happy mindset created by the Castle Doctrine.
Thirty-five states currently remain "Castle Doctrine Free." Legislators in these states should be wary of the Hudson decision because of the prediction set forth in this Note. Instead of falling victim to powerful lobbying efforts, legislators should opt to protect human life by declining to provide citizens with a "shoot first, ask questions later" mentality. Citizens in current Castle Doctrine states may soon wish their lawmakers had done the same.
Butler does not mention the then-pending Heller case or the Second Amendment anywhere in his note. I suspect that most conservatives favor a broad application of the castle doctrine, and do not describe those exercising their right of self-defense as "trigger-happy."
Butler's article in the Holy Cross Law Review argues that Justice Scalia is a positivist. Here, he seems critical of Scalia's "relentless focus on history and tradition." And he at least seems receptive to Justice Brennan's view.
Throughout his entire opinion Justice Scalia relentlessly focused on history and tradition. His attempt to define "liberty" with the use of historical facts reveals his positivistic philosophy and his acceptance of a fixed constitutional meaning. 99 As noted above, Justice Scalia searched the common law and found that family preservation had traditionally trumped the parental rights of unmarried fathers. The essence of his search is akin to the positivistic approach of employing the rule of recognition by looking to social facts and conventions. . . .
The battle between Justice Scalia and Justice Brennan over the meaning of the word "liberty" reveals the answer to the above-mentioned question. Simply put, it is delusional to aspire for unanimity among all decision makers. Our society, although pluralistic, gives credence to majority views. In doing so, we accept a legal system that is predictable, albeit imperfect.
Butler repeats the charge that Scalia is "anti-gay"
The classification of Justice Scalia as a "separationist," however, has not gone completely unchallenged. Many critics contend that Justice Scalia often submits his own view of morality into the law through his judicial opinions. By way of examples, opponents often cite Justice Scalia's dissenting opinions in Lawrence v. Texas and Romer v. Evans.'" These opinions, critics suggest, illustrate Justice Scalia's "anti-gay moral views.""
Butler offers nothing to rebut this slander.
Butler further seems critical of Scalia's "narrow" view that the Constitution is "determinate":
There is no room for discretion, in Justice Scalia's view, because he believes the Constitution is determinate. Consider the statements he provided last month at a Delaware University lecture: "The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that is the end of it. If you want more rights, create them by statute. If you want more constitutional rights, create them by amending the Constitution."In his view, appellate judges engage in "judicial activism" when they broadly define the concept of liberty under the Due Process Clause.' By incorporating a wide array of unenumerated rights into the Constitution, Justice Scalia contends that judges are usurping the role of elected lawmakers. This result is intolerable for him since the rules of adjudication provide no authority for judges to utilize the rules of change. Given Justice Scalia's narrow interpretation of the judiciary's role, rules of change become increasingly important under his legal theory. . . .
More specifically, Justice Scalia refers to his method of textualist constitutional interpretation as originalism. Under this approach, Justice Scalia does not seek to determine the original intentions of the constitutional drafters. 42 Instead, he aims to discern the "original meaning of the text."' Said differently, Justice Scalia believes that the Constitution means the same thing today as it did when it was ratified over two hundred years ago. . . .
Justice Scalia, on the other hand, purports to use the text's original meaning as his only criteria for resolving even difficult constitutional questions. This approach demonstrates his assumption that the Constitution is determinate or, in the alternative, that judges lack the authority to interpret the Constitution when it is indeterminate.
Butler described Scalia's dissent in Stenberg v. Carhart, the partial-birth abortion case, as "stinging." And he suggests this dissent is "the spawn of Justice Scalia's own political agenda."
Justice Scalia's stinging dissent in Stenberg v. Carhart underscores his position. There, the state of Nebraska passed a statute prohibiting partial-birth abortion.The Court, however, overruled the Eighth Circuit Court of Appeals and determined that the Nebraska statute was unconstitutional for the reasons set forth in Planned Parenthood of Southeastern Pennsylvania. v. Casey. Rejecting the underlying premise of Casey, Justice Scalia advocated judicial restraint and chastised his colleagues on the Court for exercising jurisdiction over the case: "If only for the sake of its own preservation, the Court should return this matter to the people - where the Constitution, by its silence on the subject, left it - and let them decide, State by State, whether this practice should be allowed. Casey must be overruled."'
Here is the dissent that Butler thinks is political:
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately sayan entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, … and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
Which part of this passage does Butler disagree with? You know, the lawyer who actually relegated Roe v. Wade to its rightful place in history is also in Mississippi.
Butler actually says we should have "diversity" on the Supreme Court and not seek more jurists in the mold of Justice Scalia:
At 71 years old, it is unclear how long Justice Scalia will remain on the bench. When he either dies or resigns, his philosophy likely will be debated while confirming a successor. For those who favor predictability and judicial restraint, any member nominated to the Court would be applauded for adhering to a theory of legal positivism. Conversely, others would seek to reject any nomination with even remote similarities to Justice Scalia. Ultimately, it is crucial that we aim for diversity on the Court. In my opinion, the American people are best served when judicial philosophies vary. Intellectual debate sparks creativity and controversy. We need both, perhaps more than ever, to move our society forward.
If there was a Democratic president and a Republican Senate, Butler would be a natural pick. But for President Trump to pick someone who actively criticizes Justice Scalia? There are problems. Much more to come.
When Judges Pick Their Law Clerks As Replacements
Judge Southwick announces he will take senior status, and two days later President Trump nominates Southwick's former clerk.
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 Butler 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 Butler. I spoke at the Jackson FedSoc chapter, and as best as I can recall, he did not attend. Butler'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 Butler 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.
