President Trump recently announced a nominee to replace Judge Southwick on the Fifth Circuit. The Fifth Circuit is generally regarded as the most conservative appeals court in the country, with a twelve to five Republican-to-Democrat split and conservative stalwarts like Edith Jones, Jerry Smith, Andy Oldham, Jim Ho, Kyle Duncan, and Don Willett.
But close watchers of the court know that it’s actually more closely divided than that top-line number lets on. Some of its Republican appointees chafe at what they perceive to be uncompromising or aggressive jurisprudence by their colleagues. Others have a libertarian bent on issues like qualified immunity that put them in coalition with the Democrats. Still others can find themselves recused on important cases. Indeed, most of the senior judges are liberal, which can affect panels and en bancs. Like many judicial conservatives, those on the Fifth can have passionate and material disagreements on technical legal questions like justiciability, which blow up majorities. And the surfeit of superstars can create its own problems. As a result, yes, it’s a very conservative court, but it’s still a game of counting to nine, and sometimes the math doesn’t work.
Judge Southwick is very much in the camp of Republican judges whose votes can’t be assumed. As the president said, he’s “highly respected” and he should be commended for his honorable service. But his replacement by a somewhat more orthodox judicial conservative in the mold of Kurt Engelhardt or Cory Wilson would materially move the court to the right and potentially stabilize some of the challenges noted above.
Furthermore, Judge Southwick is no spring chicken at around 75. Of the twelve Republicans on the Fifth Circuit, four are eligible for senior status. Judge Jones is 77 and Judge Smith is 80. A few bad elections and a twelve to five Republican court becomes a nine to eight Democratic court before you know it — just like the Ninth Circuit went from an 18 to seven Democratic court in 2016 to a near-parity 19–16 court today due to the combination of untimely deaths and timely Republican victories. It therefore behooves Republicans to lock in any senior-eligible seats on the Fifth Circuit that they currently can.
Enter Todd Butler, the president’s nominee. I don’t know Butler — I don’t travel in Mississippi circles — but on paper he looks like a standard Trump circuit judge. He didn’t go to Yale; he went to Mississippi College School of Law where he was summa cum laude. He clerked for Judge Southwick and externed for Judge Daniel Jordan — a notorious “longball hitter” on sentencing. He’s in the Federalist Society and is a partner at a major Mississippi law firm where he focuses on municipal defense and employer-side labor and employment.
He doesn’t seem to be a “movement conservative,” but this is not uncommon in Mississippi. In proper Southern style, it’s a state where the Democrats sue the police and the Republicans defend them. The Democrats represent unions and supposed victims of discrimination while the Republicans defend the companies trying to compete and make a buck. During the last Trump administration, I asked Senator Wicker’s counsel why a nominee wasn’t in the Federalist Society, and his response was, “Have you been to Biloxi? It’s called the defense bar.” Butler is in the Federalist Society. All of that points in a conservative direction for Butler.
Which brings me to the political dynamics. I wrote in these pages at the outset of the Trump administration that judges shouldn’t demand specific successors but should feel free to work with the administration in the process, while at the same time the administration should be similarly flexible within reason with judges who can take senior status and have opinions. At the end of the day, though, it’s a power game: The judge has all the power because he doesn’t have to give up his seat; all a president can do is roll the dice with nature running its course.
But let’s say Judge Southwick made it clear that he had a preferred successor. If so, it is what it is. Before Demand Justice fires up the frivolous ethics complaint (like the one they lodged against Tom Griffith in 2020), there’s nothing especially unusual about this. Julia Smith Gibbons was replaced during an election year by her clerk, Kevin Ritz. How do we think Biden settled on this white male prosecutor? Jane Branstetter Stranch was nearly replaced by her first law clerk, Karla Campbell, also in an election year. That’s an odd coincidence; it must be something in the water in Tennessee. If Judge Southwick wanted Butler, well, he wanted Butler. We can wish he wanted Scott Stewart or a Texan to our heart’s content, but if wishes were horses. . . . Judge Southwick doesn’t need to take senior status, and no Texan — or president — can make him.
Which means the alternative to Butler is the seat staying in the hands of a 75-year-old moderate until, perhaps, the Newsom administration is willing to cut a deal to his liking for a liberal clerk, or — God forbid — his agency in the matter lapses and the Democrats appoint the insufferable Scott Colom or the intolerable Carlton Reeves. The alternative to Butler is wailing and gnashing of teeth.
“But what if we hold the Senate,” you might ask. “Or if Judge Southwick is called to the Lord under President Vance?” Those are hypotheticals on hypotheticals that still don’t work.
A Republican Senate in the 120th Congress seems to vacillate between “unlikely” and “very narrow.” A narrower Senate gives Roger Wicker and Cindy Hyde-Smith functional veto power over a nominee of whom they don’t approve. (They approve strongly of Butler.) It also gives functional veto power to Lisa Murkowski and (God willing) Susan Collins. That dynamic will materially narrow the window of acceptable judicial nominees. It’s why I urged — basically in vain — senior-eligible judges to leave this Congress where the political dynamics have literally never been better for conservative appointments. The kind of judges cleared by majority-maker Murkowski (or Fetterman!) will look very different from those cleared by majority-maker McConnell.
“But won’t Senator Cruz have the same power?” On paper, perhaps. But Senator Wicker will have, in addition to his vote, the gavel of the Senate Armed Services Committee (SASC). He will be floor manager of one of two must-pass bills each Congress, the National Defense Authorization Act. No sane president will bigfoot the SASC chairman; it’s bad juju. (How do you think Mary McElroy got appointed in Rhode Island? Jack Reed was SASC’s ranking member.) When you throw in that, starting in January, it’s likely that Senator Cruz will be waging a primary campaign against the sitting vice president for the 2028 presidential nomination, the gambit becomes even more politically fantastical.
In any event, Butler seems good. I look forward to learning more about him. But the choice isn’t “Butler or someone else.” It’s “Butler or nothing.”
Some of the activist class whose whispers against Butler I’ve started to hear are the same ones who have been conspiring for as long as I can remember against the reelection of Senator Cornyn. This has similar energy. They were so preoccupied with whether they could that they don’t stop to think if they should. Indeed, the current debacle in Texas, sucking money from nearly a dozen competitive states to prop up Cornyn’s flawed replacement, is a big part of why we’re in our current political predicament.
Usually the smart play actually is the smart play, and the smart play for the Fifth Circuit is Todd Butler.