Appellate Judges

The Nomination of Fifth Circuit Judge and His Outrageous Comments about Women- ‘Brain Surgeon’ Judge Jerry Edwin Smith

Jerry E. Smith made several controversial statements, such as referring to the International Women’s Year Conference as a “gaggle of outcasts, misfits and rejects” with “perverted views.

Nomination and Confirmation Hearing;

Senator Questions for Judge Jerry E. Smith

Friday, February 28, 2003
Posted 8:27 AM by Howard Bashman

What appears below is the first ever installment of How Appealing’s 20 questions for the appellate judge. It originally appeared online here at How Appealing on January 24, 2003. 20 Questions for Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit: “How Appealing” is exceptionally pleased that Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit has agreed to be the first participant in this Web log’s newest feature, “20 Questions for the Appellate Judge.”

Judge Smith joined the Fifth Circuit in January 1988 at the age of 41. He attended college and law school at Yale. His chambers are based in Houston, Texas, and the Fifth Circuit has its headquarters in New Orleans.

Questions appear below in italics, and Judge Smith’s responses follow in plain text.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

The most favorite aspect is having the privilege of working closely with the exceptionally high quality of judges we have on our court and with the extremely talented law clerks I have had working for me, and having a great deal of control over my own time, to work at my own pace, in depth, on cases and issues.

The least favorite aspect of the job is the huge drag on family income, for a lawyer who was used to working in a prominent, prosperous law firm.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

I don’t know whom I would name of all the judges I have ever heard of.

But, one who is high on my list is The Honorable Halbert O. Woodward, deceased, the federal district judge (Northern District of Texas) for whom I clerked.

He combined incredible horse sense with an impressive work ethic and fairness. Many lawyers have told me he was the best trial judge they ever saw. (And yes, he was a Democrat appointed by his good friend, Lyndon Johnson.)

3. How did you come to the attention of President Ronald Reagan in 1987 to fill a brand new judgeship that then existed on the Fifth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?

I was active in Republican politics and had worked hard for Ronald Reagan’s election.

A number of my college friends from Yale were well placed in the Reagan Administration.

When a vacancy occurred, and the Administration hadn’t found the sort of prospect it wanted, these friends asked me whether I would be interested.

There is a funny story connected with that, as reported to me by the Reagan Administration people who knew me, and it shows how the selection of circuit judges differs from selections for the district bench.

The Reagan people were meeting with a Texas Senator to discuss how to fill some district court vacancies. They mentioned my name. The Senator said that I was o.k., but the Senator had some other Texas lawyers whom the Senator preferred.

Ever observant of Senators’ prerogative to pick their own district court nominees, my friends asked, “Well, how about Smith for the Fifth Circuit?” To which, the Senator reportedly replied, “That’s fine, the circuit is up to you guys to decide, and Smith is fine.”

The rest is history, and I got the consolation prize.

I have mixed memories of the confirmation process. I was the longest-pending circuit nominee in the U.S. for calendar 1987.

That is because this was a new seat (created in 1984 but never filled), and a Louisiana Senator claimed it for his state.

Although stating that he had nothing against me personally, he put a hold on the nomination for several months, promising to block it forever unless the President would nominate someone from Louisiana. That was frustrating.

Also, Robert Bork was nominated to the Supreme Court about a month after I was nominated to the Fifth Circuit; Professor Bork’s pending confirmation battle interjected a lot of uncertainty into the process.

As it turned out, one of the Fifth Circuit judges from Texas tragically died from an asthma attack, and the Administration agreed to shift that vacancy to Louisiana, whereupon the Louisiana Senator promptly released the hold on me, and I was confirmed on a Saturday afternoon, right before adjournment, in mid-December. (It’s interesting to compare the time lags then and now. I was pending about six months, and was the longest-waiting nominee in the whole country that calendar year, even with different parties holding the Senate and White House.)

4. If you had to abandon your seat on the Fifth Circuit but in exchange could serve as a judge on any other U.S. Court of Appeals, which one would you choose and why?

The Ninth, I guess (despite my answer to Question 10 below).

It would be cool to go to conferences and court sessions in Alaska and Hawaii, not to mention Seattle, San Francisco, and San Diego.

Plus, the Ninth Circuit is so different in many important ways from the Fifth. It is much larger, with a different mix of judges and different way of handling cases.

The sheer geography of great distance, not to mention the challenge of dealing with the large number of states in the circuit, would be interesting. (My answer here may be influenced by the fact that as I write this on my laptop, I am at a meeting in Phoenix, looking at the beautiful scenery of the Desert Southwest.)

But I wouldn’t voluntarily trade a Fifth Circuit position for anything. I think it’s the most interesting circuit of all, and the best job in the world, with the best judges and staff the federal system has to offer.

5. Some news reports from 2000 listed you as a possible U.S. Supreme Court nominee and mentioned that then-Governor George W. Bush was a friend of yours. How is it that you came to be friends with President Bush?

It is true that President Bush and I were only a year apart at Yale.

But, aside from meeting him at some point, I am sorry to say I didn’t get to know him personally. I will say that he was well known, as the son of a popular Congressman at a fairly small college, and from what I can remember, he was well liked.

It’s interesting how reporters and news writers pick up ideas like this (my supposed friendship with the President) and report them as fact; I’m sure it was an honest mistake, but it would be interesting to know how it occurred.

I enjoyed working with the Bush family in the 1980 General Election campaign, in which I was one of the Houston area co-chairmen for Reagan/Bush, but even then I didn’t have a real chance to get to know anyone really well.

(I will add that, in addition to being on the same campus with now-President Bush, I was fortunate enough also to be an undergraduate or law student with (in no particular order) Bill Clinton, Hillary Rodham, Clarence Thomas, George Pataki, J. Harvie Wilkinson, and many other talented persons who, to say the least, have made their mark. Several of my law school classmates are Article III judges.)

6. I’ve never spent any significant time in either Houston, Texas or New Orleans, Louisiana. Please recommend two restaurants that one shouldn’t miss in Houston and two things to do or places to see there, and, while you’re at it, please also recommend two restaurants worth a visit in New Orleans.

This is the toughest question on the list. I don’t often go to the famous restaurants in Houston, so I’ll punt on that category. I also think it might be improper for a judge publicly to endorse a particular commercial establishment, so I should refrain from mentioning any specific places in Houston or New Orleans.

Visitors to Houston should spend a day in Galveston, and should visit the Johnson Space Center. In February of each year, don’t miss the Houston Livestock Show & Rodeo for an unforgettable cultural experience.

7. After attending college and law school at Yale, you returned to Texas to accept a judicial clerkship with Judge Halbert O. Woodward of the U.S. District Court for the Northern District of Texas. What strategy did you employ in seeking a judicial clerkship, and how did you come to accept this one?

As is true with so many law students today, I was dumb enough just to haul off and write to a bunch of circuit judges in places where I thought I would like to spend a year. I didn’t do any research into the particular judges. They all turned me down.

I had already sent an application to Judge Woodward, because he was the federal judge in my hometown of Lubbock. He knew my family, and asked me to interview over the Christmas break, and offered me a clerkship, which was a thrill for me, and I readily accepted.

It was a fabulous experience, and I have never regretted it.

(District and appellate clerkships, although very different, are equally valuable for those who want to litigate.)

8. Several of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven’t been?

I get splendid applicants, a good sampling of the best talent in the country, mostly from the top schools, so I can’t imagine that could get any better.

The main credential is just plain “smarts,” because it’s very hard work.

People without the intelligence level to do the work would be very frustrated.

Because I have a very close working relationship with my clerks, personality and compatibility are also important. A good work ethic helps, because the work load is pretty steep, though far from impossible.

Although I don’t have any litmus tests, being against the Designated Hitter Rule is a plus.

9. Why have you decided not to adhere to the “Law Clerk Hiring Plan” that supposedly has the overwhelming support of federal appellate judges, and has your decision made it easier or more difficult to attract the sort of law clerks that you are seeking?

The current hiring plan, proposed by a group of resourceful, well-intentioned judges, will fail, sooner or later, because a “one size fits all” scheme isn’t suited to the diverse body of federal judges in the various circuits.

When the system collapses, the judges will find themselves scurrying around to hire two sets of clerks in one year; that will be chaotic, and some very well qualified law students will find themselves out in the cold.

There was never a formal vote of the judges to adopt any plan, but only a survey to find out whether there was enough inertia that a critical mass of judges would agree “not to oppose” the plan if it were tried.

Already, a number of judges are receiving applications, and professors from many schools, including a few from some of the top schools, are sending letters.

(I don’t know how much hiring there will be this school year, however, because of the uncertainties generated by the plan. I have not interviewed or hired anyone yet for 2004-05.)

Any plan with tightly defined deadlines benefits mostly the judges in the I-95 corridor between Boston and Richmond, where students can schedule a large number of interviews in a compacted period of time.

A system without deadlines is the best market, because it recognizes the geographical and personal differences among judges, law schools, and students, and affords the greatest opportunity for judges and applicants to evaluate each other.

The drafters of the proposed plan candidly recognize their failure to eliminate the very worst element of the present law clerk hiring system, which is the “exploding offer,” whereby an applicant is given no time, or only a day or so, to accept a judge’s offer.

I don’t give exploding offers, because they are unfair to the applicants. I want anyone applying to me to take whatever time he or she needs to explore other options before deciding to accept my offer. Exploding offers are largely (but not exclusively) a product of judicial ego; there are too many judges who can’t stand the thought that an applicant would hesitate before accepting his or her offer.

That offensive element of the present system needs to be abolished.

The existence of the proposed plan has substantially affected the pool of applicants so far this year, especially because most of the leading law schools have succeeded in intimidating their students from applying in the second year, mainly by denying faculty recommendations; many students feel they will be blackballed if they dare to apply, even to the judges who are accepting applications.

I nonetheless have in the neighborhood of one hundred applications already this year, some from students with stellar credentials, and some from the top ten law schools.

Some have been able to obtain recommendation letters, and others have not.

(I should add that the proponents of the suggested plan are conscientious judges with whom I have an honest difference of opinion on this subject. I commend them for the extra effort they have made to put together a plan they sincerely believe is an improvement.)

10. Should the U.S. Court of Appeals for the Ninth Circuit be divided into two circuits, and why or why not?

Yes, the Ninth Circuit should be divided.

I find that even the Fifth Circuit, with 17 authorized judgeships, is too large for efficient functioning as a collegial body. Probably, about 12 or 13 judges is the ideal number for that. It is too hard to maintain uniformity and predictability in decisionmaking if a court becomes larger than that.

It is also next to impossible to be familiar with the district, magistrate, and bankruptcy judges in one’s own circuit when the circuit is too large.

Geographical distances also need to be considered. Finally, the Ninth Circuit’s practice of having “limited en bancs” of only 11 of the 28 judges is contrary to the very idea of an en banc, which is to obtain a decision by the entire court on the most significant cases.

Because judges for the limited en bancs are chosen more or less at random, the results are less predictable, which is not good for the administration of justice.

11. The Fifth Circuit makes it next to impossible to access its non-precedential opinions. They are not available on the court’s Web site, they are not available on Westlaw or Lexis, and they are not published in West’s Federal Appendix. Why are the Fifth Circuit’s non-precedential opinions so difficult to access, and do you support making them more accessible?

This is a pet peeve of mine.

The Fifth Circuit’s non-precedential opinions are hard to access because those of us who feel otherwise have been unsuccessful in getting a majority of the Fifth Circuit judges to change the policy.

In my view, the court should (1) make all opinions precedential, (2) make all opinions available on the court’s web site, (3) furnish all opinions to LEXIS, Westlaw, U.S. Law Week, and anyone else who wants them, and (4) place into the Federal Appendix all “unpublished” opinions that don’t appear in the Federal Reporter.

There are good-faith differences of opinion on these questions, and I respect the opposing point of view. I conclude, however, that evolving technology makes it easy to furnish all opinions, easily and inexpensively, to the public and the legal community.

This is beneficial especially to the small practitioners and the pro se litigants who cannot afford expensive subscriptions or special services. All issued opinions are technically “public” anyway, so our court should not maintain a system that limits their ready availability to only a limited segment of those who may have an interest in what we do.

Eventually, the court’s policy will change; it is just a matter of time. I predict it won’t take that long, but we’ll see. Already, a new federal statute will require courts of appeals to post unpublished opinions on their web sites by April 2005.

12. Is the salary paid to federal appellate judges too low, and if your answer is “yes,” what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?

When I finished clerking for a federal district judge and went to work as an associate at a large firm (Fulbright & Jaworski) paying top dollar in the Houston market, I made, in my first year as a lawyer, one-third of what the district judge was making.

Today, law clerks who go to leading firms regularly make, including bonuses, almost as much as (and sometimes even more than) the judge for whom they clerked is making. Something is wrong with this picture.

Judges should not make anywhere near as much as they could make in major law firms. Given, however, that almost all judges are appointed after at least 12, and often 20 or more years of practice, and likely would be well into a firm partnership or would be senior law school faculty, they should make considerably more than the current level of about $160,000 for circuit judges.

The point about higher judicial salaries is not that there aren’t plenty of good lawyers willing to take a lifetime job paying $160,000, which is a lot of money.

Instead, the salary needs to be high enough to make the pool of willing lawyers large enough that the judiciary attracts and keeps the necessary number of applicants of sufficiently high quality.

The public should ask itself, “Would you trust yourself or a loved one to a $160,000-a-year brain surgeon?” I believe most people would say no.

What if, indeed, all brain surgeons were arbitrarily limited to $160,000 per year? Surely, there would be some extremely capable doctors who would answer the call for love of the work, despite the limitation.

But, the pool of top-notch aspirants likely would not be large enough, and less-qualified physicians would fill the void. There would still be plenty of brain surgeons, but would they all be good enough that you would trust them with your life?

Would enough good new doctors choose brain surgery as a specialty if they saw their colleagues making three or four times as much in other specialties?

(I recently heard of a former federal circuit judge who makes $13,000 per day as a mediator.)

13. A lawyer with five years’ experience is going to deliver his or her first appellate oral argument in any court before a three-judge panel that includes you. What advice do you have for this lawyer?

Know the record cold.

Remember that you’re talking to judges, not jurors.

Remember the proper standards of review, and don’t attempt to re-try the whole case at the appellate panel.

Know when to yield ground on less important issues, and be ever candid with the court.

Strike a conversational, not hortatory, tone.

Go into the argument with the goal not only of winning for your client, but also of helping the court do its job of rendering a respectable decision that will apply reasonably to the world beyond the immediate parties.

Don’t even think of trying to avoid a judge’s question; the judges will always have the last word.

Avoid sarcasm, hyperbole, and lofty rhetoric.

And finally, don’t assume every question is unfriendly; judges can throw home run balls as well as curves.

14. What percentage of appeals with counsel on both sides are argued in the Fifth Circuit, and is that number too high, too low, or just right, and why? How do you decide whether to request oral argument in a case? And how often does oral argument change your views as to the outcome of an appeal?

I don’t know the percentage, but it is way less than half, but that is appropriate. The main criterion for argument should be whether argument will assist the court in deciding the case properly. There is no reason to require counsel and the court to spend time and money engaging in argument that won’t accomplish that.

It is better that the court spend its argument time on the cases in which argument is not just an automatic ritual, but is a means of accomplishing the work of the court.

Most of the judges I have heard discussing argument agree with my estimate that oral argument affects the outcome in about ten percent of the cases.

It undoubtedly affects the court’s reasoning and the details of the opinion in a significantly greater percentage than that, however.

15. In a span of just over two months in 1996, you issued two blockbuster opinions: Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that the University of Texas Law School could not use racial preferences in deciding which students to admit); and Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (decertifying the largest class action ever attempted in federal court). What single opinion of yours — majority, concurring, dissenting, or other — do you find to be the most memorable?


16. How do you define the term “judicial activism,” and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

Judicial activism could mean many things, but primarily it is the substitution of the court’s view for the policymaker’s view, in cases where the decision properly should rest with the policymaker, or substituting the court’s view for what the Constitution says, where a constitutional provision is at stake.

A judge should not consider his or her personal preference as to outcome, any more than an umpire should call balls and strikes based on which team is his or her favorite.

17. If you were placed in charge of selecting nominees for U.S. Court of Appeals vacancies, what qualifications and attributes would you view as important, and why?

I would look for nominees who have both high intellect and good common sense.

Complex and close cases require a keen analytical mind, but good judges also need common sense to appreciate how the decisions they make will operate outside the realm of legal theory.

They need to have a high work ethic, self-motivated, with a limited ego.

I always would be wary of anyone who shows the tendency to abuse power or position.

They must be able to work well with others.

18. In 2002, Congress confirmed two additional U.S. Court of Appeals judges who have the last name “Smith.” Lavenski R. Smith joined the Eighth Circuit in July 2002, and D. Brooks Smith joined the Third Circuit in August 2002. Aside from suggesting to these new Circuit Judge Smiths that they sign their opinions using their full names, what other advice would you offer to a new federal appellate judge, especially one who has not worked previously as a state or federal court judge.

Always sit with your back to the wall.

19. During your fifteen years on the bench, in what ways, if any, has technology changed how you perform your duties as a federal appellate judge, and what changes do you anticipate technology will bring over the next fifteen years?

When I joined the court, we already had e-mail and computerized legal research. So, the biggest change has been the expanded use of the internet.

I predict the biggest change in the next fifteen years will be a migration to paperless litigation based on electronic case filing at every level.

There also will be a greater use of remote court proceedings similar to teleconferencing, with judges and participants in widely separate geographical locations.

That’s not necessarily a good development, but it will happen nonetheless.

20. Other than reading “How Appealing,” what do you do for enjoyment and/or relaxation in your spare time?

I don’t have the usual specific hobbies, such as golf or gardening, although I do mow my fairly large yard myself.

I greatly enjoy my family (wife Mary Jane and children Ruth Ann, Clark, and J.J.), and taking some trips, usually by car, each year.

Mary Jane says I never read anything but baseball books, and although that’s not quite true, I do enjoy pretty much anything related to that sport.

(And in answer to the question I wish you had asked, Pete Rose should not be admitted into the Hall of Fame, ever or under any circumstances. But if the All-Star Game can end in a tie because the players are “tired,” I guess anything can happen.)

President Obama Announces Intent to Nominate Stephen Higginson to Serve on United States Court of Appeals

The White House
Office of the Press Secretary
For Immediate Release
May 05, 2011

WASHINGTON- Today, President Obama Announced his intent to nominate Stephen Higginson to the United States Court of Appeals for the Fifth Circuit.

“Stephen Higginson is a distinguished candidate for the Court of Appeals for the Fifth Circuit,” President Obama said.  “Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering.  I am confident he will serve the American people with distinction.”

Stephen Higginson: Nominee for the United States Court of Appeals for the Fifth Circuit
Stephen Higginson was born in Boston, Massachusetts.  He attended Harvard College, where he received his A.B., summa cum laude, in 1983.  After graduating from Harvard, Higginson attended Cambridge University in England, where he was a Harvard Scholar, earning a Masters in Philosophy in 1984.  He then attended Yale Law School and obtained his J.D. in 1987.  While in law school, Higginson was Editor-in-Chief of the Yale Law Journal.

After graduating from Yale Law School, Higginson served as a law clerk to the Honorable Patricia M. Wald of the United States Court of Appeals for the District of Columbia.  The following year, from 1988 to 1989, Higginson served as a law clerk to the Honorable Byron R. White of the Supreme Court of the United States.  He has been an Assistant United States Attorney since 1989, when he joined the Criminal Division in the District of Massachusetts.  Since 1993, Higginson has served as an Assistant United States Attorney in the Eastern District of Louisiana, where he became the chief of appeals in 1995.  As chief of appeals, Higginson has personally handled or supervised all criminal and civil appeals in the District, editing or writing more than 100 appellate briefs, and presenting numerous oral arguments before the United States Court of Appeals for the Fifth Circuit.  Higginson has received the Department of Justice’s awards for superior and outstanding performance as a federal prosecutor.  From 1997 to 1998, he served a six-month detail with the Department of State, working as deputy director of special projects for the Presidential Rule of Law Initiative.

Since 2004, Higginson has worked part-time in the United States Attorney’s Office, continuing to supervise the appellate section.

That same year, he joined the full-time faculty at Loyola University New Orleans College of Law, becoming an Associate Professor of Law.  Higginson teaches subjects including constitutional law, evidence, and criminal law.

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