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George W. Bush’s desire to be the first president to nominate a Hispanic to the U.S. Supreme Court could lead him to Emilio Garza, a judge on the 5th U.S. Circuit Court of Appeals whose judicial philosophy makes him attractive to conservatives but an anathema to pro-abortion groups. “You don’t have to dig very deep to find that Emilio Garza is opposed to Roe v. Wade,” says Kae McLaughlin, executive director of the Texas Abortion Rights League. “We would definitely oppose his nomination.” While Roe remains a touchstone for any judicial nominee 30 years after it was decided, it is the only obvious hurdle for Garza to overcome. Practitioners describe Garza, who rose quickly through the judicial ranks to reach the 5th Circuit in 1991, as an affable, extremely analytical and solidly conservative judge. But a handful of rulings are likely to raise trouble, even though Garza sided with a majority in each case that upheld abortion rights. In 1992, Garza was a member of a panel that struck down a Louisiana law criminalizing abortions except in limited circumstances. But his concurrence in Sojourner T. v. Edwards articulated his displeasure about having to do it. “Because the decision to permit or proscribe abortion is a political choice,” he wrote, “I would allow the people of the state of Louisiana to decide this issue for themselves.” In 1997, Garza again criticized the Supreme Court’s abortion jurisprudence in a concurring opinion. In Causeway Medical Suite v. Ieyoub, Garza voted with the majority to strike down parts of a Louisiana law requiring parental notification when a minor seeks an abortion. But he suggested in his concurrence that Roe is flawed and that subsequent Supreme Court rulings upheld it not because of its sound basis, but in part because of “the primacy of settled expectations about constitutional law.” David Garrow, a court observer and professor at Emory University School of Law in Atlanta, says he doesn’t believe Garza is confirmable because of his reasoning in Causeway Medical. “This is a judge who believes Griswold v. Connecticut [the 1965 Supreme Court decision that laid the framework for a constitutionally guaranteed right to privacy] was incorrect and Bowers v. Hardwick [a 1986 decision that refused to extend the privacy right in a case about a sodomy statute] was correct,” Garrow says. “Judge Garza would be Teddy Kennedy’s dream nominee.” Garza could not be reached for comment. A spokeswoman in his office says Garza generally does not give interviews. Despite the opposition Garza would generate, practitioners give him high praise. Lino Graglia, a University of Texas School of Law professor who teaches constitutional law, describes Garza as a “soundly reasonable and basically conservative” judge who engages in self-restraint on the bench. “He’s not anxious to enact conservative philosophy,” Graglia says. “I would guess he’s not as conservative as Edith Jones,” another 5th Circuit judge and perennial name on conservative lists for the high court. While people often assume that Garza is not as conservative as Jones, David Schenck, an appellate litigator and partner in the Dallas office of Hughes & Luce, says, “I think you’ll find it very rare the cases on which they differ.” A native of San Antonio, Texas, the 55-year-old Garza is a devout Catholic who has never married. He received undergraduate and master’s degrees from the University of Notre Dame and served on active duty as a captain in the U.S. Marine Corps from 1970 to 1973. Following graduation from the University of Texas School of Law in 1976, Garza established his private practice and joined a small firm in San Antonio, now known as Clemens & Spencer, before beginning his rise through the judicial ranks. In 1987, then-Gov. Bill Clements of Texas appointed Garza to the state trial court in San Antonio, but his tenure on the state bench was very brief. President Ronald Reagan nominated Garza to the U.S. District Court for the Western District of Texas the following year, and in 1991, the first President Bush named him to the 5th Circuit. On the circuit, Garza has shown a penchant for a careful reading of the law. King & Spalding associate Tracey Robertson of Houston served as a law clerk for Garza during the court’s 1994-95 term. “It’s really important to him to get it right,” Robertson says. In a concurring opinion to 2000′s Flores v. Johnson, Garza criticized the basis on which a trial court allowed psychiatric testimony to help condemn Mexican national Miguel Angel Flores for rape and murder. Garza noted in the opinion that a psychiatric expert testified unequivocally that Flores would be a “future danger” without ever evaluating him, and that the expert’s opinion was based on the facts of the crime and the defendant’s conduct during the trial rather than on an independent assessment. Garza wrote, “What separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty of heinous crimes. If that process is flawed because it allows evidence without any scientific validity to push the jury toward condemning the accused, the legitimacy of our legal process is threatened.” In 1997, Garza wrote the 5th Circuit’s en banc opinion in Atwater v. City of Lago Vista, upholding a lower court decision to grant immunity to officers sued by a woman who was arrested and jailed for violating a seat belt law. The Supreme Court voted 5-4 to affirm the ruling. Greg Coleman, a former Texas solicitor general who heads the Austin office of Weil, Gotshal & Manges, says Garza always focuses on the pressure points in a case and typically doesn’t accept answers that he feels misrepresent the 5th Circuit’s previous rulings. “I’ve seen him cut people short — not in an unpleasant way — if they’re misrepresenting,” Coleman says. “I’ve seen him stop a guy midway [in an argument] and say, ‘That’s not really what we meant in that case.’”

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