The Hansons wanted to buy two handguns, and they wanted to do it in Texas.
Andrew and Tracy Hanson, both members of the Citizens Committee for the Right to Keep and Bear Arms, live in Washington, D.C., but their preferred gun dealer, fellow committee member Fredric Russell Mance, is based in Arlington. Because they’re not Texas residents, the Hansons couldn’t buy the guns directly from Mance, and would have had to pay a $125 transfer fee for each firearm.
Instead, the Hansons went to court, arguing that the fee infringed on their Second Amendment rights. They were asking a judge to let them buy the guns at market price, but really they were asking a judge to strike down a decades-old law restricting interstate handgun sales.
The Hansons won at the trial court, but lost before a three-judge panel on the appeals court, leaving them few options. Perhaps their best shot was that the full appeals court — the politically conservative 5th U.S. Circuit Court of Appeals, which hears civil and criminal cases from Texas, Louisiana and Mississippi — would take up the case “en banc” and rule in their favor.
Ultimately, in an eight-seven vote, the Hansons lost and the status quo won. But the near-tie caught lawyers’ eyes: A year ago, that vote wouldn’t even have been close — Democrat- and Republican-appointed judges appointed before President Donald Trump took office overwhelmingly agreed to let the decades-old law stand. But all four new Trump-appointed judges sided with the Hansons, and the two from Texas had sharp words for their colleagues who did not.
“The Second Amendment continues to be treated as a ‘second-class’ right,” wrote Judge James Ho, a former Texas Solicitor General confirmed to the 5th Circuit in December. “This case warrants en banc review.”
Experts and 5th Circuit practitioners point to that close vote — just two more Trump-appointed judges, they expect, would have flipped the court — as among the best evidence of the impact the president has had on the federal bench since assuming office last year.
Call it Trump’s quietest revolution: 26 of the president’s picks have already been confirmed to the nation’s 13 powerful appeals courts, which sit just one step from the U.S. Supreme Court. In his first congressional term, President Barack Obama appointed 15.
And the 5th Circuit has been a focal point in Trump’s efforts: That court, considered the country’s most politically conservative, has already welcomed five new judges, more than any other circuit court in the country. Three of them have come from Texas.
Since the eight-seven vote was taken, the 5th Circuit has added one more Trump-appointed judge, and the president has one more vacancy to fill on the court. The same vote today, in other words, would likely go the other way.
Trump’s appointments, according to interviews with experts and 5th Circuit practitioners, have begun to shift an already right-leaning court toward a more monolithic brand of conservatism. These are judges, experts say, whose views are less hidden and whose outcomes are easier to predict. Compared with their colleagues appointed by other Republican presidents, their philosophies are less idiosyncratic; so far, they have seldom surprised. And as their numbers swell, the 5th Circuit is teetering toward a tipping point — one that might, in the next close vote, mark a monumental shift on a political issue that divides the country.
“Anybody out there that runs a group that litigates will notice that vote and is going to be thinking about it,” said David Coale, an appellate lawyer who frequently appears before the 5th Circuit. “It isn’t just that they’re conservative, though they are conservative. They’re waving a big flag.”
“A rightward push”
Trump entered office with more vacancies on the federal bench than many of his predecessors, thanks in part to the machinations of Senate Majority Leader Mitch McConnell, R-Kentucky. The president’s judicial nominations outfit, centered in the White House Counsel’s Office, has been uncharacteristically efficient, churning out a steady stream of judges who are highly qualified — and, critics say, highly ideological — and sending them down the conveyor belt for confirmation by the U.S. Senate.
“Despite all the chaos in Trump world … the president’s judicial nominees team is a finely operating machine,” said Josh Blackman, a prominent conservative lawyer and a law professor at South Texas College of Law Houston.
Any Republican, Blackman said, “should be happy about [Trump’s] judicial nominees.”
McConnell has called judicial appointments his “top priority,” even trimming the Senate’s usual August recess to continue confirmation votes. Federal judges enjoy lifetime tenure and often have the last word on lawsuits over topics that loom as large as immigration policy, abortion rights and environmental regulations; these judges’ power was important enough to sway many Republicans otherwise reluctant to back the president. That’s in part because federal judges’ work will likely outlast that of the man who nominated them. And Trump has sought to ensure that, nominating judges decades younger than he is.
Trump has already appointed more than one in eight active appeals court judges, and he’s on pace to confirm more. Those figures stand out more in some places than others: On traditionally liberal circuits, Trump has a chance to make lasting ideological shifts.
“The real legacy of the Trump administration is that the 5th Circuit will not be an outlier,” said Steve Vladeck, a University of Texas Law professor.
But even the 5th Circuit, which already had a majority of Republican-appointed judges, has begun to shift as it welcomes a slate of Trump appointees. The president has made significant inroads at that New Orleans-based court, including by shifting former Judge Edward Prado to a plum ambassadorship to Argentina, opening a seat for another Texas appointment in former aide to Gov. Greg Abbott Andrew Oldham. The court was already mostly conservatives; but these conservatives, experts say, are something different.
That shift, several 5th Circuit lawyers said, is perhaps best observed through full votes of the court, like the one that nearly overturned a longstanding federal gun law. But it has begun to appear in the day-to-day operations of the court as well, if in less visible ways. With five of the court’s 16 active judges appointed by Trump, and one more nominee expected soon, lawyers can expect to see a Trump appointee on most three-judge panels.
That shift will influence debate in every case, practitioners said, as judges appointed by Democrats or even more moderate Republicans inch rightward to make common ground with their new colleagues.
That kind of dialogue is “below the surface, but it’s going on,” Coale said. “And it’s of one mind — these folks all share a generally consistent philosophy. When that’s on every panel, it has a rightward push, a subtle one, a small one, a hard to measure one — but it’s very, very real.”
“The best examples of the best example”
If the 5th Circuit is a focal point of the federal bench, then its focal point might be Ho, who has the support from U.S. Sen. Ted Cruz, R-Texas, and worked under then-Attorney General Abbott. Ho had never served as a judge before his investiture this year. But he has already begun to draw national attention for his sharp rhetoric.
In his very first writing for the court, Ho dissented from 12 of his new colleagues, writing a scathing 11 pages admonishing them for letting stand a campaign finance decision he said seriously eroded free speech protections.
The 5th Circuit had upheld an Austin campaign donation limit — a maximum individual contribution of $350 to a city council candidate. His opinion seemed to challenge all restrictions on campaign donations, arguing that “if you don’t like big money in politics, then you should oppose big government in our lives.”
“If there is too much money in politics, it’s because there’s too much government,” Ho wrote. A cash-flooded campaign system, he added, is “the inevitable result of a government that would be unrecognizable to our Founders.”
The opinion made immediate waves. A prominent University of Southern California Law professor tweeted that Ho’s law clerks should have advocated removing the overly political passage — “judges should stick to law,” Orin Kerr advised. An NPR headline asked whether Ho’s writings are best considered “legal opinions or political commentary.” And for many of the lawyers who argue before him, Ho’s writings have been eyebrow-raising, to say the least. (“Good lord,” one lawyer, who asked not to use his name because he often appears before the court, said of the campaign finance dissent. Another described it as “bonkers.”)
Ho’s opinion may well have gotten the case some attention at the highest level. The Supreme Court has scheduled the case for a September conference and asked the city of Austin to submit a brief, a sign that the court may take it up in its next term.
Months later, Ho sharply admonished a federal district judge who had directed the Texas Conference of Catholic Bishops to turn over scores of emails for an upcoming trial over the handling of fetal remains. The judge, long-serving David Ezra, had compelled the religious group to submit those documents in just 24 hour; the trial was imminent. The 5th Circuit quashed the subpoena, and Ho, going further than his colleagues, suggested that the quick deadline had been an attempt to intimidate people of faith from expressing “their profound objection to the moral tragedy of abortion.”
The circumstances, Ho wrote, “leave this Court to wonder if this discovery is sought to retaliate against people of faith for not only believing in the sanctity of life — but also for wanting to do something about it.”
Neither of Ho’s particularly sharp-tongued opinions had a transformative effect on the case at hand; in the campaign finance vote, he was in the vast minority, and on the subpoena issue, he agreed with his colleagues’ result, though his rhetoric went further. But appeals courts judges’ opinions, even their dissents, are often adopted by the Supreme Court in the decisions that become law of the land. Several recent 5th Circuit writings from Trump-appointed judges have come off as calling cards to the higher court, experts said.
Ho, ironically, was never the primary concern for Senate Democrats fighting Trump’s first few Texas nominees. He was confirmed by a wider margin than his Texas compatriot, former Texas Supreme Court Justice and Twitter phenom Don Willett. At their joint confirmation hearing, Ho sat to Willett’s right relatively unscathed, fielding just a handful of questions about his role in an infamous George W. Bush administration memo that authorized the use of torture against certain detainees. The bulk of the attention — and the adversity — went to Willett, who faced scrutiny over his outspoken, sometimes politically charged social media presence, particularly a memorable bacon-themed tweet the judge said was aimed at “levity” and critics said trivialized gay marriage.
Willett, for all the attention, has been the more traditional and the less provocative of the two Texas judges, experts say. But he, too, has made significant moves on the appeals court.
In a July ruling, Willett and two of his colleagues ruled that the Federal Housing Finance Agency — the agency responsible for regulating the backbone of the country’s mortgage financing system, Fannie Mae and Freddie Mac — is unconstitutionally structured based on a separation of powers issue.
“The FHFA’s professed power is something special—so spacious it’s specious,” Willett wrote, with characteristic flair. His opinion went even further than his colleagues had. “In terms of unfettered clout, the FHFA has no rival across the federal agency landscape. But unfettered must never be unfretted.”
The FHFA’s structure is unique, but the panel’s legal reasoning could imperil a handful of other federal agencies, most notably the Consumer Financial Protection Bureau, a watchdog agency that’s already been gutted by the Trump administration.
Any ruling that calls a federal agency unconstitutional is likely to be taken up by the nation’s highest court. This case’s chances at review are especially high in that it breaks with a precedent set by a different federal appeals court, the D.C. Circuit Court of Appeals.
Cases like those — striking down the structure of federal agencies; challenging restrictions on gun sales and campaign finance limits while lending support to restrictions on abortion rights — are exactly why judicial appointments are high priorities for the GOP-dominated federal government. And they’re also an effective signal to activist litigators on both sides of the political spectrum: You know what you’re getting if you bring your case here.
“If you voted for Donald Trump because you wanted to see the federal judiciary become even more conservative than it already is, you are getting exactly what you paid for,” said University of Texas Law professor Hugh Brady, noting that the 5th Circuit is one of Trump’s greatest successes so far. “Judges Willett and Ho are the best examples of the best example.”
As they take stock of those examples, appellate lawyers must think through how to present cases to 5th Circuit panels likely to include a Trump appointee — and, in some cases, whether to bring them to the 5th Circuit at all.
Earlier this month, Ho was on a panel that shot down a longshot lawsuit from three University of Texas at Austin professors who had challenged Texas’ new campus carry law, arguing that guns in classrooms would have a “chilling effect” on free speech. The professors, represented by prominent Austin attorney Renea Hicks, lost at the trial court and then lost before Ho at the 5th Circuit. The opinion, which Ho signed on to, seemed to leave the professors not a millimeter of wiggle room.
The professors could try again at the 5th Circuit, either with the three-judge panel or the whole court. Or they could try the longshot approach of asking the U.S. Supreme Court to take up their case.
The professors haven’t yet decided what to do, Hicks said. But Hicks, who has been arguing before the 5th Circuit for four decades, said if there’s any kind of appeal, it won’t be at that court.
This 5th Circuit, he said, is “the most conservative court there that I’ve ever seen.”
Date Posted: Saturday, September 1st, 2018 , Total Page Views: 1711
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