Judge Gregg Costa, U.S. Court of Appeals for the Fifth Circuit (John Council)
A mere five months after President Barack Obama nominated him, the full U.S. Senate approved the appointment of Gregg Costa on May 20. That makes him the president’s first Texas appointee to the U.S. Court of Appeals for the Fifth Circuit.
Costa, a former federal prosecutor who was part of a legal team responsible for sending Houston financier R. Allen Stanford to prison for 110 years in 2012, was appointed that same year as a U.S. District Court judge in the Southern District of Texas. Costa will hear his first oral argument as a Fifth Circuit judge on June 2 in New Orleans.
After taking a break during a jury trial in the Victoria Division that involved a dispute over Japanese cattle, Costa sat down with Texas Lawyer senior reporter John Council. They talked about how he gained the support of U.S. Sens. John Cornyn and Ted Cruz, both Texas Republicans; where he might fit in on the conservative circuit court; and why prosecuting a big Ponzi scheme case isn’t a bad thing to have on your résumé when seeking the federal bench.
Texas Lawyer: It’s been many years since a Texan has been sent to the U.S. Fifth Circuit Court of Appeals, and your appointment is a first for President Barack Obama. Did you seek out this job, or did the White House contact you first?
Gregg Costa: The White House contacted me. It was the week before the 2012 presidential election—that’s how I remember—so late October 2012. And a lawyer from the White House Counsel’s Office whom I knew from going through the district court process called me and said, at that point I think, there were two Fifth Circuit openings. He said one logical place to look were people who had been confirmed for the district court in Texas with bipartisan support in the president’s first term. And he said, along with that, I had—although I was primarily a trial lawyer—I did have a decent amount of appellate experience. That was the first contact I had. It wasn’t on my radar screen. I was enjoying the district court ,and I actually had to give it considerable thought about whether I wanted to be considered.
TL: President Barack Obama’s Texas judicial appointments have gone surprisingly smooth, and yours is a good example. Texas U.S. Sen. John Cornyn, who doesn’t agree with the president on much, was very vocal in supporting your nomination. How did this come to pass?
Costa: I’ve been fortunate for both my nominations that I’ve had bipartisan support. The whole process for the district court started out with a committee that Congressman Al Green from Houston has set up to consider judicial appointments in the Houston area. And, so, that was my first introduction to the entire judicial nomination process, and Congressman Green recommended my name to the White House for the district court bench. And then that led to me going through the senators’ process: first Sen. [Kay Bailey] Hutchison and Sen. Cornyn’s committee and then Sen. Cornyn and Sen. [Ted] Cruz’s committee. And they do a thorough job; they ask a number of questions. And I met with both senators in both instances. I’ve been fortunate, after that process, that they agreed to support me.
TL: So you met with Sen. Cruz personally, as well?
Costa: Yes, both times, for the district court and the court of appeals, I met with both Texas senators and, once, a joint meeting in D.C.
TL: It’s very clear on the record that Sen. Cornyn was on board with your nomination; he spoke at both of your nominations hearings. But we didn’t hear as much from Sen. Cruz. When you met with Sen. Cruz, did you feel like he had any concerns about you that you had to alleviate?
Costa: I think he asked me questions just like everyone has throughout this process, from the White House to the various committees, including the senators. I’ve been asked a number of questions about judicial philosophy, but no one—either on the White House side or on the senators’ side or during the Judiciary Committee hearing—no one asked about specific issues that might come before me. And I’ll let the senators speak for themselves, but I was fortunate that both Texas senators voted in favor of my nomination.
TL: Both you and Sen. Cruz had clerked for the late Supreme Court Chief Justice William Rehnquist. Did you know Sen. Cruz beforehand?
Costa: Sure. We have Rehnquist reunions on a fairly regular basis, so I had known Sen. Cruz through that.
TL: During your nomination hearing, you were asked which judges you admired. And I believe you said Justice Rehnquist and John Minor Wisdom, as well. As we all know, the Fifth Circuit’s courthouse is named after Wisdom, and he enforced civil rights laws during the 1960s—like you said during your confirmation hearing—at his great peril. When you get on the bench, who are you going to be more like: Rehnquist or Wisdom?
Costa: I think you view each case individually, and it’s every judge is—and should be—their own independent person who does their best to decide the issues based on the facts and the law. And there are various judges I look to for inspiration in terms of their work ethic or their collegiality or their commitment to the rule of law. But I don’t think you can consider, in deciding a case as a judge, what some other judge might do with that case.
TL: So you’ll be your own judge?
Costa: That’s the goal. I think all judges aspire to that, and I think there’s no other way to do it.
TL: You’ve been on the trial court bench for a few years and have an appellate record before the Fifth Circuit. Did you have to defend—or at least prepare to defend—any reversals as part of the confirmation process?
Costa: There’s a thorough vetting process. There’s a thorough questionnaire the Senate Judiciary Committee puts out that you have to respond to. Some of the questions deal with those issues. And I had some questions from senators about a few cases I handled, which I responded to.
TL: There haven’t been that many that you’ve been reversed on. The only one that comes to mind dealt with the interpretation of a fairly new Texas statute that has to do with voter registration. That’s one case that you were reversed on; it was a fairly technical case and application of the law. Did they ask you about that? That’s the only case I saw that could be possibly seen as controversial.
Costa: I wasn’t asked about that during the hearing. Sen. [Chuck] Grassley asked me some follow-up questions about that case, which I responded to—to the extent I could, since it’s been remanded, so it’s a case currently pending before me. And that’s a publicly available document.
TL: Did he send you written questions later?
Costa: Right. Only Cornyn and Sen. [Al] Franken attended my hearing. So, per Senate custom, they are allowed to ask written questions, which Sen. Grassley did and Sen. Cruz did. And Sen. Grassley asked some questions about that case.
TL: On the trial bench, your decisions only have to be a consensus of one. At the Fifth Circuit, you’ll be shooting for a consensus of three judges most of the time. How are you going to handle that?
Costa: I’m getting all these congratulations these days, and people speak of it as an elevation. I’m not so sure because of what you just pointed out, which is that I have to get someone else to agree with me before I have the ability to do anything on this circuit, which is quite a change from the district court. But that’s something I look forward to: working with others, hearing their views, trying to decide the cases together when you don’t agree, dissenting but disagreeing in a respectful manner. That will be the biggest adjustment is how to interact with you colleagues, how to give fair consideration to their views while also explaining your views on the case in a persuasive manner.
TL: You’re going to a fairly conservative circuit court. Do you have any idea where you’re going to fit in on this court? Will I be able to tell the difference between you and the two other judges on a panel?
Costa: I’m not a big fan of labels. I don’t think—I’m not a particularly ideological person on the law or in other things in life. I really do just plan on deciding each case as best I can, based on the precedents and the statutes and the other provisions that are in front of me.
TL: I don’t know anything about your politics. I do know you’re the guy who helped send R. Allen Stanford to prison for 110 years. That was repeated throughout your nomination process. Did that help you? Was that your calling card?
Costa: I think folks look at a judicial candidate with their background in mind, and that certainly didn’t hurt. I was actually being considered for the district court before I started working on that case. I think what did help me—in particular with the district court—is the number of trials I was able to participate in as a prosecutor because, especially in this day and age, trials in federal court are rare—especially rare for someone under the age of 40. But I was able to have a number of trials as a fairly young lawyer though the U.S. Attorney’s Office. And that, I think, definitely helped a great deal in the district court process.
TL: You’ve argued before the Fifth Circuit six times; were they all criminal cases you handled as a prosecutor?
Costa: Those were, correct. I did some civil appellate work at Weil Gotshal before going to the U.S. Attorney’s Office, but I never argued in the circuit.
TL: And since you’ve argued before the Fifth Circuit and have had your papers graded as a district court by the Fifth Circuit, is there anything you’d like to change at the Fifth Circuit?
Costa: I think you want to get a perspective from the inside about how things work before you see if there is anything you’d like to change. In the trial court, I’ve been open to innovations—like in this trial I’m having right now, they’re allowing asking questions from a jury. And at the court of appeals, I’m open to new ideas. If there’s any way I think I can improve the court’s procedures, I won’t be afraid to raise those. But, like I said, I need to in there and spend a good bit of time seeing how things actually work to know if there’d be any room for that.
TL: Some appellate judges ask more questions than others during oral argument, and some seem to have made up their minds about a case by reading briefs and don’t ask questions. Do you see value in oral argument? Is that something that could change your mind on a case—by hearing arguments by lawyers?
Costa: At times I think oral argument can make a difference, and I’m sure at times it will change my mind. I understand the briefs are probably the most important part of the appellate process, and the briefs are largely going to dictate how a judge sees the case. But I clerked for two courts that have very active questioning. I saw, through both clerkships, that it’s not the normal situation, but there are times when oral argument can make a big difference. So, I’m eager to participate in oral argument. That’s a part of the job I’m looking forward to.
TL: You’re about to be dropped into one of the nation’s busiest appellate courts. It’s got a huge criminal docket, it hears lots of death penalty appeals and it has plenty of hot-button civil cases that come before it. And last concerns before you step into this brand new world?
Costa: I think any time you take on a new challenge, it’s going to be a lot of hard work getting up to speed. There will be difficult decisions to make. I expect that it’s always going to be a challenge but especially the first couple of years. But, in the various things I’ve done in my career, I’ve always looked forward to that, and I’m excited about the new challenge, and, hopefully through working hard and being open-minded, I’ll be able to handle the load.