Ugh.
Judge Jerry E. Smith’s presence on the panel that will hear oral arguments in Texas v. United States on Friday is simply a disaster for the DAPA and expanded DACA programs. Smith, the self-described former right-wing activist, once described feminists as a “gaggle of outcasts, misfits and rejects.” He is one of five judges on the Fifth Circuit who once voted to allow a man to be executed despite the fact that the man’s lawyer slept through much of his trial. In a case involving an obscure provision of the Affordable Care Act, Smith badgered a Justice Department attorney and ordered the department to produce a letter explaining whether they agreed with an inartful statement by President Obama.
Smith’s conservatism is tribal and, at times, belligerent. It would be very surprising if he cast a vote in favor of politically controversial programs spearheaded by Barack Obama.
He is joined on the panel by Judge Jennifer Elrod. Elrod is a George W. Bush appointee, while Smith is a Reagan appointee, so her record is not as thick as Judge Smith’s. Nevertheless, in her eight years on the bench she has generally behaved as a loyal conservative. Judge Elrod is perhaps best known for her decisions reading what remains of Roe v. Wade narrowly to permit Texas to enact strict restrictions on abortion. Indeed, in a decision last October, Elrod practically begged the Supreme Court to hear a challenge to the Texas abortion law, most likely because she believed that the justices would affirm her decision reading abortion rights narrowly. The tactic backfired, at least temporarily, as the Supreme Court blocked the law while the full merits of the case was still pending before the Fifth Circuit.
Elrod’s record on immigration suggests that she will take a similarly conservative approach. In Villas at Parkside Partners v. City of Farmers Branch, the full Fifth Circuit voted 9-5 to strike down a local ordinance that effectively made it a crime for undocumented immigrants to rent a home. Elrod dissented from this decision, claiming, somewhat improbably, that the ordinance “does not constitute a regulation of immigration.”
Judges Smith and Elrod will be joined by Judge Stephen Higginson, an Obama appointee who is likely to dissent from Smith and Elrod’s decision.
See here and here for the background. I swear, Judge Smith has been on every high-profile panel in recent memory. The universe has a sick sense of humor sometimes. It is what it is, and this isn’t the end of the road if things go as past history suggests they will. As Daily Kos notes, this is the hearing on the Obama Administration’s motion to stay (lift) the injunction while the Fifth Circuit ponders the appeal of the ruling itself. That hearing will presumably have a different panel. Even still, good Lord do we need some new judges over there.
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