U.S. Court of Appeals for the Fifth Circuit. (Photo: Michael A. Scarcella/ALM)
President Donald Trump is wasting no time making a big impact on the Texas federal judiciary as a special committee is beginning the process of interviewing at least six of his candidates for two seats on the U.S. Court of Appeals for the Fifth Circuit.
The Federal Judicial Evaluation Committee (FJEC), a standing by bipartisan committee of lawyers named by Texas U.S. Sens. John Cornyn and Ted Cruz, is set to meet Friday in Houston to vet Trump’s candidates.
According to four people who are familiar with the process but who declined to be named, the candidates being considered include: Texas Supreme Court Justice Don Willett; U.S. District Court Judge Reed O’Connor of Fort Worth; former Texas solicitor general James Ho; Andy Oldham, a deputy general counsel to Gov. Greg Abbott; Michael Massengale, a justice on Houston’s First Court of Appeals; and Brett Busby, a justice on Houston’s Fourteenth Court of Appeals.
All of the candidates have deeply conservative records and are well-recognized among Texas attorneys — two of whom have close connections to Cornyn. Both Cornyn and Cruz sit on the Senate Judiciary Committee and hold powerful sway over judicial appointments in the state.
Willett, who has served on Texas’ high court for 11 years, was originally named as one of Trump’s potential picks for the U.S. Supreme Court. He’s perhaps the best-known appellate judge in the state due to his prolific social media presence, which earned him the moniker as the “Tweeter Laureate of Texas.” He even poked fun at Trump during his primary election campaign. Willett “politely and charmingly declined to comment,” according to an email he sent.
O’Connor was appointed to the federal trial bench in 2007 by the President George W. Bush and became a hero to the cultural warriors on the right side of the spectrum last year when he issued a nationwide injunction against transgender students using bathrooms that corresponded with their gender identities in public schools. He also served previously served as chief counsel to Cornyn. O’Connor did not return a call for comment.
Ho is a partner in the Dallas office of Gibson Dunn & Crutcher and has argued more than 25 cases before the Fifth Circuit and the U.S. Supreme Court. In 2009 while he was serving as the state’s solicitor general, Texas Lawyer named him one of 25 extraordinary minorities in Texas Law. Ho also previously served as chief counsel to Cornyn and served as vice chair of the FJEC committee until recently. Ho is a former law clerk of U.S. Supreme Court Justice Clarence Thomas. He is also a immigrant to the United States from Taiwan, and would become the first Asian-American judge on the Fifth Circuit if confirmed. Ho did not return a call for comment.
Oldham is former deputy Texas solicitor general who helped convince U.S. District Judge Andrew Hanen of Brownsville to block President Barack Obama’s move to shield five million immigrants from deportation in 2015. Oldham is also a former law clerk of U.S. Supreme Court Justice Samuel Alito. He did not return a call for comment.
Massengale has served on the Fourteenth Court since 2009 when he was appointed by then Gov. Rick Perry and formerly served as a law clerk to former Fifth Circuit Judge Harold R. DeMoss Jr. He mounted an unsuccessful challenge for Texas Supreme Court Justice Debra Lehrmann’s seat in the 2016 GOP Primary Election, criticizing her for her frequent dissents on the all-Republican Court. Massengale declined to comment.
Busby has served on the Fourteenth Court since 2012 when he was also appointed by Perry and is a former partner an appellate attorney in Houston’s Bracewell. Busby is also a former law clerk of the late U.S. Supreme Court Justice Byron White and former U.S. Supreme Court Justice John Paul Stevens. Busby declined to comment.
The candidates are all vying to replace former Judge Emilio Garza, who took senior status in 2012 and retired from the court in 2015, and Judge Carolyn King, who took senior status in 2013.
While several of Trump’s cabinet appointments have been highly criticized for lack of experience or conflicts of interest, his list of candidates for the Fifth Circuit is being met with some measure of relief from lawyers who practice before the court.
“They are all known quantities,” said Kurt Kuhn, an Austin appellate lawyer and partner in Kuhn & Hobbs, said of the candidates. Candidates vetted by FJEC have rarely been controversial although many in the Bar have been concerned about Trump’s potential nominees because of his antagonism towards the judiciary.
“With Trump’s Supreme Court appointment we were all holding our breaths — would this be a person with a judicial temperament?” Kuhn said. “The fact that they are going with people we respect is not surprising, and kind of reassuring in a way.”
Texas currently leads the nation in the number with 11 unfilled U.S. District Court positions, not to mention the four U.S. attorney positions in the state, which are normally some of the first positions a president tackles. Judicial emergencies have been declared in all four federal U.S. District Court divisions in the state because of high caseloads and the lengths of the vacancies.
“I would have hoped they would have addressed the needs of the district courts before they looked at the Fifth Circuit,” said Michael Smith, a Marshall patent attorney who practices in the Eastern District of Texas.
The Eastern District is one of the nation’s busiest intellectual property venues where judges carry heavy caseloads. The eight-judge district is down three judges.
Cornyn and Cruz have asked for applications for all of those federal trial and U.S. attorney positions and have set a Feb. 19 deadline.
Former president Barack Obama only successfully appointed one Texan to the Fifth Circuit, Gregg Costa in 2014, and was heavily criticized by his fellow Democrats for not pushing for more appointments to the court during his two terms in office.
The Fifth Circuit already has a reputation as one of the nation’s most conservative courts in the nation as the majority of its seats were filled by both Bush presidents. Trump’s nominees, if confirmed, will likely maintain the conservative lock on the court for decades to come.