Not a bad panel, all things considered.
Judges Patrick Higginbotham of Dallas, Jerry Smith of Houston and James Graves Jr. of Jackson, Miss., will sit on a panel that will hear appeals from state officials in Texas and Mississippi of lower-court rulings that overturned the two states’ gay marriage bans.
In the Louisiana case, U.S. District Judge Martin L.C. Feldman upheld his state’s ban, so there, same-sex couples are appealing.
University of Richmond law professor Carl Tobias, who closely tracks the gay marriage suits, said in an interview that while the 5th Circuit is one of the most conservative appellate courts in the country, opponents of gay marriage aren’t guaranteed to prevail.
“The draw is a rather typical 5th Circuit panel,” Tobias said. “Higginbotham’s vote will be critical.”
Higginbotham and Smith were nominees of former President Ronald Reagan, a Republican, while President Barack Obama, a Democrat, selected Graves.
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Graves, who served on the Mississippi Supreme Court before Obama elevated him to the federal bench in 2011, apparently has not ruled previously on same-sex marriage, Tobias said. But Graves probably will be “pretty open minded to the arguments” of the gay couples, the professor said.
He said Higginbotham is harder to handicap.
Once considered solidly conservative, Higginbotham has irritated some conservatives with his rulings critical of Texas judges’ handling death-penalty cases and a recent decision in which he wrote an opinion upholding the University of Texas’ race-conscious admission policy.
In 1976, former President Gerald Ford, a Republican, selected Higginbotham to serve as federal district judge in Dallas. Higginbotham moved up to the appellate court six years later, amid speculation he was Supreme Court material.
The talk has faded. Higginbotham, 76, is on senior status.
“He’s probably right in the middle of that court and well-regarded,” Tobias said. “It’s just hard to know where he might be on this issue.”
That largely matches Unfair Park‘s assessment as well. Smith, who was on the redistricting panel, is generally considered likely to uphold the ban on same sex marriage.
At least we have a chance with this panel, and with the Fifth Circuit that’s all you can ask for. With the appeal of HB2, it’s hard to see any hope.
Fifth Circuit Court of Appeals Judges Jennifer Walker Elrod and Catharina Haynes, who both voted earlier this year to uphold the abortion law, known as House Bill 2, will join Judge Edward Prado on the panel that next Wednesday will hear oral arguments on the latest challenge from abortion providers, the court announced.
All three were appointed to the bench by President George W. Bush.
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Elrod and Haynes were part of a unanimous trio that last spring voted to uphold a piece of House Bill 2 requiring Texas abortion doctors to get admitting privileges at a nearby hospital. The abortion privileges are again at issue in the new challenge, although it mostly centers on a separate mandate that abortion facilities comply with the expensive standards of hospital-style surgical centers.
Elrod, who seems to have a knack for hearing abortion cases, also ruled earlier this year as a part of a 2-1 majority to allow the mandate to take effect as the case goes on – a decision that was eventually reversed by the U.S. Supreme Court.
I’m not sure what is even the point in arguing before Elrod. There’s no way she doesn’t already have her mind made up. Elrod has made her intentions clear. Is it possible to have an appellate judge recused for being obviously biased? Not that it would likely matter anyway, but I’m just curious. Lone Star Q and PDiddie have more.
Elrod should certainly recuse herself, if for no other reason than she has made her intentions clear, and we have argued before her in the past. She now has a vested interest and a personal opinion. No way will she be fair.