President George W. Bush will have a chance to place at least three more judges on the 5th U.S. Circuit Court of Appeals in his final two years in office. But with the Senate falling to the Democrats after last week’s elections, he may be forced to pick less controversial nominees, several lawyers say.

The White House is considering who’ll replace 5th Circuit Judge Patrick Higginbotham of Texas, who took senior status on Aug. 28. “It frees me to do a little more teaching. That’s what it amounts to,” Higginbotham says of taking senior status. He teaches constitutional law and federal procedure at St. Mary’s University School of Law.

Bush will also need to replace 5th Circuit Judge Harold DeMoss, also of Texas, who in a September letter to the White House announced that he would take senior status effective July 1, 2007. DeMoss and Higginbotham will continue to handle full caseloads, according to the letters they sent to Bush informing him of their plans to take senior status. DeMoss did not return a telephone call seeking comment.

In February, Bush named Michael Wallace, a partner in Phelps Dunbar in Jackson, Miss., to replace former 5th Circuit Judge Charles Pickering Sr. of Mississippi. Pickering served a one-year recess appointment that ended in December 2004.

With the change in the Senate giving Democrats more power to block judicial nominees, the question is whether the president will moderate his choices for the 5th Circuit � a court where Bush nominees have provoked ideological battles between Senate Democrats and Republicans. The nominations of Pickering and former Texas Supreme Court Justice Priscilla Owen provoked filibusters on the Senate floor, and both waited years before they were eventually seated on the court.

But the time has passed for Senate floor fights, and Bush must stay away from controversial nominees if he wants to continue filling important federal benches by the end of his term, three Texas lawyers say.

“It’s the decision he has got to make: Does he want the courts to get their work done, or does he want to use the courts as a way to manipulate the voters?” says Susan Hays, a Dallas solo and former chairwoman of the Dallas County Democratic Party. Hays believes calculated fights over judicial nominees and their ideologies have been used to bring people to the polls to support one party or the other.

In 2002, Pickering faced stiff opposition from activists who questioned whether, as a U.S. district judge in Mississippi, he gave a lighter sentence than merited to a defendant accused of cross-burning in 1994. Pickering denied the accusation and waited two years for a Senate floor vote that never came before accepting a recess appointment from Bush.

Owen, who Bush nominated in 2001, waited nearly four years before the Senate approved her nomination to the 5th Circuit. Democratic senators attacked her dissent from a decision that upheld judicial bypasses in a Texas parental abortion notification law and her numerous decisions that favored businesses while she served on the Texas Supreme Court.

Owen was seated on the 5th Circuit in May 2005 as part of a deal brokered by the Gang of 14, a bipartisan group of moderate senators. They agreed to vote to confirm Owen in exchange for Senate Republicans dropping the so-called nuclear option, which would have meant changing a parliamentary rule to allow a simple majority to consider a nominee, thereby preventing a filibuster.

Wallace, who Bush nominated to replace Pickering, may face obstacles in the Senate. The American Bar Association rated him “not qualified” to serve on the 5th Circuit in a report submitted to the Senate Judiciary Committee in July. It’s the first such rating of a Bush nominee by the ABA.

According to the ABA report prepared by Kim Askew, a partner in the Dallas office of Hughes & Luce, Wallace “did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots, and those who do not share his view of the world.”

The Senate Judiciary Committee has not voted on Wallace’s nomination. If the committee does not act on Wallace’s nomination by the end of this year, Bush will have to decide whether to renominate Wallace or nominate someone new. Wallace, Askew and a White House spokesman did not return calls seeking comment.

Short List

A well-connected Republican attorney in Austin who requests anonymity believes that the Democrats’ victories last week will cause Bush to stay away from naming controversial nominees to the 5th Circuit such as Owen, Pickering and Wallace.

“You’re not needing to galvanize your base, and it would be better to get someone in you want rather than lose your opportunity,” the lawyer says. “What purpose would it serve to put up someone who’s got a great conservative record but also has a bunch of potential liabilities?”

Dan Hedges, a partner in Houston’s Porter & Hedges, agrees, saying Bush must be careful with his upcoming judicial selections if his ultimate goal is to fill the 5th Circuit vacancies by 2008.

“I would think if he stuck by what he had been doing, the chances would be minute,” says Hedges, chairman of a committee that reviews U.S. District Court candidates that U.S. Sens. Kay Bailey Hutchison and John Cornyn, both Texas Republicans, submit to the president. “I think it’s better to get someone you like but don’t love, to get them on.”

Cornyn, who sits on the Senate Judiciary Committee, hopes all of Bush’s 5th Circuit nominees will reach the Senate floor for a vote.

“Regardless of who chairs the Judiciary Committee, all nominees deserve a fair confirmation process in committee and an up-or-down vote on the Senate floor,” Cornyn says. “That’s what the American people expect and what I will continue working hard to achieve.”

Home-state senators of the same party play a large role in choosing U.S district court nominees for the president. But the job of choosing federal circuit court nominees is largely the White House’s responsibility.

Three lawyers say Bush should look to his Texas appointees to the U.S. district court bench for possible promotion to the 5th Circuit. Of the dozens of Bush appointees to U.S. district court benches in Texas, none have been controversial, and most have been embraced by lawyers in their districts once seated.

David Godbey and Jane Boyle of Dallas and Lee Rosenthal of Houston are among the U.S. district judges mentioned as possible 5th Circuit nominees by four politically connected Texas lawyers. Godbey and Rosenthal decline to comment, and Boyle did not return a telephone call seeking comment.

Other possible nominees mentioned include Texas Supreme Court Chief Justice Wallace Jefferson, former Texas Solicitor General Gregory S. Coleman, now a partner in Weil, Gotshal & Manges in Austin, and 1st Court of Appeals Justice Jane Bland of Houston, the four lawyers say. Jefferson and Coleman decline to comment, and Bland did not return a telephone call seeking comment.

When federal circuit courts have judicial vacancies for an extended period of time, it can lead to trouble. In the mid-1990s, during the administration of President Bill Clinton, the 5th Circuit had three benches that went unfilled for years, leading the late 5th Circuit Chief Judge Henry Politz to declare a “judicial emergency” to help the court process its workload. As a result, the court had to use visiting U.S. district court judges to sit on panels to hear cases.

But veteran 5th Circuit Judge Carolyn Dineen King doesn’t see that happening again, because the court is caught up on its docket, which has seen a drop in complicated civil appeals that require oral argument. Most of the cases the court hears these days are criminal appeals that contain routine questions of law, she says.

“The bottom line is we may not be as needful of visiting judges as we were 10 years ago when this happened,” King says. “The problem has largely gone away because of the change in our docket.”