President Barack Obama has a chance to appoint three Texans to the U.S. Court of Appeals for the Fifth Circuit, and it appears he’s playing it safe politically by considering promoting three sitting U.S. district court judges, one of whom is a Republican, according to seven sources close to the appointment process.
The potential candidates, according to the sources who spoke on condition of anonymity, include U.S. District Court Judge Xavier Rodriguez of San Antonio, U.S. District Court Judge Marina Garcia Marmolejo of Laredo and U.S. District Court Judge Gregg Costa of Galveston.
The White House is seeking to fill Fifth Circuit vacancies created by Judges Fortunato “Pete” Benavides and Emilio Garza, who took senior status last year, and Judge Carolyn Dineen King, who will take senior status on Dec. 31.
While much has been made of the U.S. Senate’s recent change of the filibuster rules to prevent a minority party from blocking the president’s district and circuit court nominees, the rule change will have little impact on Obama’s Fifth Circuit nominations from Texas. That’s because both of Texas’ Republican U.S. senators, John Cornyn and Ted Cruz, have even more control over Texas’ Fifth Circuit nominees though the blue-slip process. Under that Senate tradition, the home-state senators send the Senate Judiciary Committee written notice as to whether they have a favorable or unfavorable opinion of a nominee. Additionally, Cornyn and Cruz are members of the Senate Judiciary Committee, which rarely green-lights a nominee without approval from the senators of the nominee’s state [See "Help Wanted: Who Will Fill 5th Circuit Vacancies?" Texas Lawyer, March 18, 2013, page 1].
Earlier this year, Cornyn and Cruz appointed members to a bipartisan committee of attorneys called the Federal Judicial Evaluation Committee (FJEC) to review all of Obama’s district and circuit court candidates from Texas. So far, the committee has interviewed Costa, while Marmolejo and Rodriguez await interviews, according to sources close to the process.
Rodriguez and Costa declined comment, and Marmolejo did not return a call seeking comment. Kate Martin, a Cornyn spokeswoman, also declined to comment. Catherine Frazier, a spokeswoman for Cruz, did not return a call for comment. Keith Maley, regional communications director for the White House, declined comment.
David Prichard, a partner in San Antonio’s Prichard Hawkins McFarland & Young who chairs the FJEC, confirmed that the committee is already reviewing Fifth Circuit candidates but declined to name them.
“Prior to this year, the FJEC never interviewed Fifth Circuit nominees. So, Senator Cornyn asked that we start doing that, and so we started this summer with that process,” Prichard said.
Previously, the committee mainly focused on reviewing district court candidates, which the senators have great influence in choosing. But circuit court candidates come directly from the White House, Prichard noted.
Of the potential candidates, Rodriguez may be the most interesting. Rodriguez served as a Republican on the Texas Supreme Court from 2001 until 2002, before Steven W. Smith defeated him in the Republican primary. The following year, President George W. Bush appointed Rodriguez to the U.S. District Court for the Western District in San Antonio.
Several politically minded Texas lawyers view Rodriguez as an independent judge who will be acceptable to Democrats. They point to his 2002 opinion in In Re: Jane Doe 10, which granted a “judicial bypass” of the state’s parental-notification law by allowing a minor to get an abortion. In that case, the minor alleged she would be exposed to possible physical and emotional abuse if she notified her parents about the abortion.
In September, Rodriguez was part of a 2-1 panel that allowed the U.S. Department of Justice to intervene in Perez. v. Perry, a Texas legislative redistricting case. In that case, the U.S. Justice Department sought to enforce the Voting Rights Act in a case where plaintiffs allege the state’s Republican redistricting plans “were enacted with discriminatory intent and had a discriminatory impact.”
Susan Hays, an Austin solo who represented the minor on appeal in Jane Doe 10 and is a former chairwoman of the Dallas County Democratic Party, called Rodriguez “a real judge.”
“And by ‘real judge’ I mean he leaves politics and personal opinions out of judgments,” she said, “And I say that in the redistricting case, as well, which I followed pretty closely.”
Hays caused waves within her own party in 2005 when she sent a letter to the Senate Judiciary Committee on letterhead of the Dallas County Democratic Party supporting Michael Schneider and Jane Boyle, two of Bush’s U.S. district judge nominees who later were confirmed.
“And as someone who has been disappointed with politicization of state and federal courts and almost gave up the practice of law because of it, I’m glad to see a real jurist promoted,” Hays said of Rodriguez.
Costa and Marmolejo are seen as safe picks for the Fifth Circuit because both were noncontroversial appointments that won U.S. Senate approval in 2011 and received the support of Cornyn and then-Sen. Kay Bailey Hutchison, who Cruz replaced.
“I think it’s a powerful talking point that someone was approved by essentially the same Senate and the same senior Texas Republican senator that sits on the Senate Judiciary Committee,” said Chris Kratovil, a partner in the Dallas office of Dykema who was a classmate of Costa at the University of Texas School of Law.
However, Kratovil noted that Republicans may be concerned about Costa’s 2012 decision in Voting for America v. Steen.In that case, Costa enjoined enforcement of a new Texas voting law that made it harder for voluntary deputy registrars to receive and deliver completed voter registration applications. In a 2-1 decision, the Fifth Circuit reversed Costa’s decision. [See "Slices and Dices": Split 5th Circuit OKs Limits in Voter Registration Drives" Texas Lawyer, Oct. 14, 2013.]
“Given that we have two Republican senators, and one of them is pretty far to the right, that probably doesn’t help Gregg’s cause,” said Kratovil, noting that voting reform is a big issue for the Tea Party.
“But let me say this, and I say it as a dyed-in-the-wool Republican: Elections have consequences. Barack Obama is going to be president for another three years, and Gregg Costa is remarkably qualified in all respects and has a fantastic temperament,” Kratovil said.
“If the GOP prevents or stops his nomination, then we should be estopped from complaining when the next Miguel Estrada is stopped by the Democrats” Kratovil said of Bush’s 2002 nominee to the U.S. Court of Appeals for the D.C. Circuit who was blocked through a filibuster by Senate Democrats.
Marina Garcia Marmolejo
Controversial civil case decisions will likely not be a problem for Marmolejo because less than 5 percent of her docket in Laredo is comprised of civil matters.
Marmolejo is an excellent choice for the Fifth Circuit, said her close friend William T. Reid IV. He met her in 1997 while he was an assistant U.S. attorney in the Western District of Texas and Marmolejo was a public defender. Years later, Reid hired her as a partner in his civil law firm, Reid Collins & Tsai, where she worked just before her appointment to the federal bench.
“Marina comes to the bench with experience from virtually every vantage point: criminal-defense attorney, federal prosecutor, big firm and boutique plaintiffs firm. Her even-keeled demeanor, true compassion for people and her sheer brilliance will serve her well on the bench,” Reid said.
He noted that in 2005 Cornyn and Hutchison proposed Marmolejo as a district court candidate to Bush, only to have her come in second to a more senior candidate.
“Marina has support from both sides of the aisle,” Reid said.
“She was born in Nuevo Laredo and became a naturalized U.S. citizen. Her family is first-class and close-knit,” Reid said. “I could not think of a more well-rounded, perfectly suited judicial candidate.”