The United States Court of Appeals for the Fifth Circuit is home to some of the most conservative federal appeals judges in the country. Five of the court’s judges once wrote that a man could be executed despite the fact that his lawyer slept through much of his trial. In 2011, a Fifth Circuit panel strongly suggested that undocumented immigrants have no Fourth Amendment right to be free from unlawful searches or seizures. The court’s former chief judge once cut off one of her few liberal colleagues during an oral argument, telling him “I want you to shut up.” Last summer, ThinkProgress predicted that marriage equality was less likely to prevail in the Fifth Circuit than in any other federal appeals court where a marriage case was pending.
On Monday, however, the Fifth Circuit revealed the panel of three judges who will hear challenges to marriage discrimination in Texas, Mississippi and Louisiana, and two of those judges offer a ray of hope to supporters of equality. The panel includes Judges Patrick Higginbotham and Jerry Smith, both Reagan appointees, as well as Obama appointee James Graves.
Supporters of equal rights for gay couples can almost certainly give up on Judge Smith. Smith once described himself, albeit somewhat jokingly, as a former “right-wing activist.” He also once described feminists as a “gaggle of outcasts, misfits and rejects.” In 2012, when a Justice Department attorney was in his courtroom defending a provision of the Affordable Care Act, Smith required DOJ to write a three-page letter responding to a political statement by President Obama that Smith disagreed with. A pro-equality vote from Smith would be shocking.
Judge Graves, meanwhile, is a much newer addition to the federal bench, so his views are less defined. Nevertheless, the overwhelming majority of federal judges to consider marriage equality cases since the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013 have sided with gay rights. If would be surprising if an Obama-appointed member of a federal appeals court joined the few outliers who broke with this consensus.
That leaves Judge Higginbotham. Higginbotham is a conservative who joined the court early in the Reagan presidency. Yet he is also a very different kind of conservative than Judge Smith. In 1987, when senators rejected Reagan’s nomination of the arch-conservative Judge Robert Bork to the Supreme Court, Southern Democrats who helped kill the Bork nomination indicated that they would be willing to confirm Higginbotham to the high Court if Reagan nominated Higginbotham as a replacement. More recently, Higginbotham authored an opinion upholding the University of Texas’s affirmative action program even after the Supreme Court asked his court to reconsider a previous decision upholding the program.
In an interview last August, Higginbotham described himself almost as if he were a judge out of another era on his court. “When I joined the 5th Circuit, I may have been the court’s most conservative judge,” he told the Texas Lawbook. “Now, I’m probably left of center, even though I don’t think I’ve changed my views at all.”
So Higginbotham is hardly a certain vote for marriage equality, but he’s not a hardline conservative like Judge Smith either. In this sense, Higginbotham resembles another judge who recently heard a marriage equality case, Tenth Circuit Judge Jerome Holmes. Like Higginbotham, Holmes was appointed by a Republican president — indeed, several civil rights groups opposed Holmes’ nomination because of his opposition to affirmative action and his support for the death penalty. Since joining the bench, however, Holmes has proved more moderate than judges in Smith’s mold. Most notably, he joined the Tenth Circuit’s marriage equality decision last June.
Nor is Holmes alone among judges appointed by Republican presidents who sided with marriage equality. So there is ample reason to believe that Higginbotham could also join with the overwhelming majority of judges who cast a vote for equality. That’s a much better outcome for gay rights than originally seemed likely in the conservative Fifth Circuit.