The Volokh Conspiracy

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Ask Jeeves

How would The Butler vote?

|The Volokh Conspiracy |


I think the debate about Todd Butler's nomination to the Fifth Circuit has been revealing. There is no actual argument that Butler bears resemblance to any of the other Fifth Circuit nominees over the past three decades. Instead, the argument goes, he has done enough to meet some arbitrary threshold for a circuit court nomination, and those who disagree are idiots. I don't pretend to be an expert in politics. Indeed, were I someone seeking the favor of those in power, I would just keep my mouth shut. Talk less, smile more, as they say. But I never keep my mouth shut. Instead, I read the decisions of the Fifth Circuit very closely and talk about them.

Friends and those who support the nomination have pointed to a few things in Butler's defense. First, Butler wrote very strong briefs defending qualified immunity on behalf of paying clients. Okay. QI is an issue that divides conservatives. Justices Scalia and Thomas did not agree. Judges Willett and Oldham do not agree. This is not exactly a useful predictor of Judge Butler's jurisprudence. And there is nothing particularly controversial about this work. No one receives a medal of courage for insurance defense work.

Second, Defenders have also pointed to the responsibility of becoming the managing partner of Phelps Dunbar's office in Jackson, Mississippi. Phelps Dunbar has 18 offices and about 500 lawyer. By my count, there are about 30 attorneys in the Jackson office, including one of Butler's most vigorous defenders on social media. Okay. That responsibility is something. I suppose the managing partners of the seventeen other offices are also viable nominees for the Fifth Circuit. Same for the managing partners at each of the offices for all of the other firms on the AmLaw 200.

Third, Defenders declare that Edith Hollan Jones did not have public service experience before being appointed to the Fifth Circuit. Judge Jones was the General Counsel of the Texas GOP from 1982-1983. That year, a Democrat won the Texas Governor's race, and Lloyd Bentsen was serving his third term. Texas was not yet the GOP Powerhouse it became in the 1990s. A young Edith Jones was boldly building the Republican party of Texas. Likewise, Judge Jerry Smith was the City Attorney of Houston, and argued City of Houston v. Hill before the Supreme Court. If anyone is trying to compare Todd Butler, as the nominee, to Smith and Jones in the 1980s, I would gladly have that conversation.

Fourth, the truth also comes out that Butler did in fact attend my 2022 talk to the Jackson Federalist Society chapter. I stand corrected. I distinctly remember meeting several of the dignitaries in the room, but not Butler. But the truth matters. I went back through my archives and found a photograph from the event, and Butler was there. If attendance at a few FedSoc meetings is sufficient to make one a viable Fifth Circuit nominee, I would point out that Scott Stewart was also in the room.

Like I said, there is not much in the "affirmative" column for Butler, and there is quite a bit in the "negative" column. Perhaps the most dispiriting aspect of this process is the message it sends. A current conservative law student who will be clerking on the Fifth Circuit sent me this message:

I wanted to write and thank you for raising awareness about the questionable Todd Butler nomination. As you correctly noted, seats of this magnitude must be reserved for people who have dedicated some portion their life to the Cause/public service. I am eager to see if this turns into another Judge Ozerden situation— time will tell!

Those are willing to risk their lives, fortunes, and sacred honors to promote the rule of law will be passed over for those who simply cash a paycheck. We need to recognize those and reward those who display courage, not those who simply skate by and have friends in high places.

The most useful metric to predict how Judge Butler will vote is Judge Southwick's record. It is clear enough that Judge Southwick chose Butler as his heir apparent. And like most judges who do so, we can safely assume that Southwick has picked someone who will uphold his judicial legacy. So, let's Ask Jeeves: how will the Butler vote?

I searched for recent Fifth Circuit en banc votes. Again, on 17-member Court, the vote often splits 9-8. If a senior judge is on a panel, or there is a recusal, or a conservative member has some idiosyncratic take, the vote usually goes the other way.

Here are cases where Judge Southwick dissented from the en banc court's majority opinion. In many of the cases, Southwick joined a dissent from Judge Higginson.

  1. United States v. Texas (2026) - 24-50149 - Majority upheld Texas law restricting illegal immigration; Judge Southwick joined dissents of Judges Richman and Higginson.
  2. Nathan v. Alamo Heights School District (2026) - 25-50695 - Majority upheld Texas Ten Commandments Law; Judge Southwick wrote a dissenting opinion joined by Judges Richman, Graves, Higginson, Douglas, and Ramirez.
  3. W.M.M. v. Trump (2025) - 25-10534 - The Fifth Circuit voted to rehear en banc the challenge to President Trump's invocation of the Alien Enemies Act; in an unusual move, Judge Southwick dissented from the grant of rehearing en banc. He had written a vigorous panel decision ruling against Trump.
  4. Little v. Llano County (2025) - 23-50224 - Library patrons challenged county for removing books from libraries. Majority ruled for county. Judge Southwick joined Judge Higginson's dissent.
  5. Alliance for Fair Board Recruitment v. Securities and Exchange Commission (2024) - 21-60626 - NASDAQ imposed DEI requirement on directors. Majority declared policy unlawful. Judge Southwick joined Judge Higginson's dissent.
  6. United States v. Abbott (2024) - 23-50632 - Majority upheld Texas's floating barrier installed on Rio Grande River; Judge Southwick joined dissents from Judges Higginson and Douglas.
  7. Consumers' Research v. FCC (2024) - 22-60008 - Majority ruled universal service fund was unconstitutional. Judge Southwick. (The Supreme Court reversed in a 6-3 decision, but I'm with Justices Thomas, Alito, and Gorsuch.)
  8. Wages and White Lion Investments v. FDA (2024) - 21-60766 - Majority granted petition from Vape companies challenging FDA regulations. Judge Southwick joined Judge Haynes's dissent. Here, the Supreme Court reversed unanimously.
  9. Feds for Medical Freedom v. Biden (2023) - 22-40043 - Fifth Circuit allowed challenge to COVID-19 vaccination mandate to proceed. Judge Southwick joined Judge Higginson's dissent.
  10. NetChoice v. Paxton (2022) - 21-511178 - Fifth Circuit upheld Texas social media law. Judge Southwick wrote a partial dissent. The Supreme Court reversed, finding the facial challenge was inappropriate (a decision I still disagree with.)
  11. Cochran v. SEC (2021) - 19-10396 -upheld challenge to SEC ALJ adjudication process. Judge Southwick joined Judge Costa's dissent.

My research here was fairly quick, and I'm sure I missed some relevant cases. But these cases speak to how Judge Southwick votes on the most consequential Fifth Circuit cases. I don't expect that a Judge Butler would vote much different. If there is any evidence that he disagrees with Judge Southwick on these sorts of matters, it should be known before he receives a lifetime commission. And no, I don't care how he votes on cases involving qualified immunity and other lawsuits against municipalities.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the President of the Harlan Institute. Follow him @JoshMBlackman.