Take the Fifth: Election consequences for our Court of Appeals?

As the world anticipates the U.S. Senate Judiciary Committee’s vote to send the nomination of Judge Amy Barrett to the Senate floor for a confirmation vote to the U.S. Supreme Court, it’s worth stopping and taking account of where our local Court of Appeals stands. The public is rightly focused on the implications of Presidential elections when it comes to confirmation battles on the U.S. Supreme Court, but the decisions of the Courts of Appeals arguably touch more lives more directly every day, due to the nature of their decisions coming from appeals-of-right and not just hand-selected certiorari review.

So, with that in mind, take a look at the 17 active-duty judges of the U.S. Court of Appeals for the Fifth Circuit, and their respective ages (listed here in order of seniority on the Court), and contemplate the implications of the upcoming Presidential election for shaping our Court:

  • Judge Edith Jones, 71 (appointed by Pres. Reagan) **
  • Judge Jerry Smith, 74 (appointed by Pres. Reagan) **
  • Judge Carl Stewart, 70 (appointed by Pres. Clinton) **
  • Judge James Dennis, 84 (appointed by Pres. Clinton) **
  • Judge Jennifer Elrod, 54 (appointed by Pres. Geo. W. Bush)
  • Judge Leslie Southwick, 70 (appointed by Pres. Geo. W. Bush) **
  • Chief Judge Priscilla Owen, 66 (appointed by Pres. Geo. W. Bush) **
  • Judge Catharina Haynes, 57 (appointed by Pres. Geo. W. Bush)
  • Judge James Graves, 67 (appointed by Pres. Obama) *
  • Judge Stephen Higginson, 59 (appointed by Pres. Obama)
  • Judge Gregg Costa, 48 (appointed by Pres. Obama)
  • Judge Don Willett, 54 (appointed by Pres. Trump)
  • Judge James Ho, 47 (appointed by Pres. Trump)
  • Judge Stuart Duncan, 48 (appointed by Pres. Trump)
  • Judge Kurt Engelhardt, 60 (appointed by Pres. Trump) *
  • Judge Andrew Oldham, 42 (appointed by Pres. Trump)
  • Judge Cory Wilson, 50 (appointed by Pres. Trump)

For those keeping score, that’s two Reagan-appointees, two Clinton-appointees, four George W. Bush appointees, a mere three Obama appointees, and a whopping six Trump appointees. And looking at age, assuming some correlation between age and imminent vacancies, there is one judge over 80, four judges in their 70s, three judges in their 60s, five judges in their 50s, and four judges in their 40s.

Note that a federal judge may retire at full compensation or take senior status after they reach the age of 65 and their age plus years of federal judgeship added together equal at least 80. Under those calculations, the six judges above noted with two asterisks (**) are eligible now, and the two others noted with one asterisk (*) will be eligible in the next four years. That totals to almost half of the active membership of the Court. No matter your political or judicial ideological (and these are not necessarily the same) preference, it is clear that this election will matter.

And just for completeness, here are the ten Fifth Circuit judges who have taken senior status, most of whom regularly still sit on panels and continue to contribute to the development of the law in the Circuit:

  • Judge Thomas Reavley, 99 (Pres. Carter)
  • Judge Carolyn King, 82 (Pres. Carter)
  • Judge Grady Jolly, 83 (Pres. Reagan)
  • Judge Patrick Higginbotham, 82 (Pres. Reagan)
  • Judge Eugene Davis, 84 (Pres. Reagan)
  • Judge John Duhe, 87 (Pres. Reagan)
  • Judge Jacques Wiener, 86 (Pres. Geo. H.W. Bush)
  • Judge Rhesa Barksdale, 76 (Pres. Geo. H.W. Bush)
  • Judge Fortunato Benavides, 73 (Pres. Clinton)
  • Judge Edith Clement, 72 (Pres. Geo. W. Bush)