Trump’s judicial legacy continues in the South

In the past few weeks, the federal appeals court, which includes Texas and two deep south states, has passed rulings on two cases that illustrate the extent of his conservative dominance – and the continued influence of President Donald Trump.

For one, the controversial new Texas law, which severely restricts abortion, allowed it to come into effect temporarily despite doubts about its constitutionality. In the second case, it blocked efforts by the Biden government to order anti-COVID shots by companies because it questioned its constitutionality.

In doing so, the 5th US Court of Appeals demonstrated the effect of several decades with Republican presidents nominating the majority of their judges, including 12 of the 17 currently active.

At the same time, it provided a vivid illustration of the way the changing ideology of the Republican Party has impacted federal courts – and thereby national politics – particularly at the appellate level and the Supreme Court.

About 60 years ago, as a young reporter for the Associated Press in New Orleans, I was reporting on the 5th District Court of Appeals, which then had jurisdiction over three other southern states. It was also dominated by Republican candidates, six of its nine 1961 judges.

But where today’s GOP nominees drag the 5th district to the right, they’re dragging it in the opposite direction, particularly on civil rights, the predominant issue before the panel in the decade after the Supreme Court banned public school segregation and the Congress had passed the first modern civil rights laws of the era.

President Dwight D. Eisenhower appointed five of those six GOP judges, and three played a pivotal role in resolving a number of civil rights cases that protected the rights of black Americans, particularly to vote and previously attend exclusively white educational institutions.

Three of those six, John Brown of Houston, John Minor Wisdom of New Orleans, and Elbert Tuttle of Atlanta, received their judicial appointments after winning one in Eisenhower’s 1952 Republican Convention victory over his top GOP presidential rival, Ohio Senator Robert Taft Had played a role.

All three pioneered the GOP’s efforts to break the stranglehold of the Democrats and Segregationists in the so-called “Solid South” and became Eisenhower supporters in a very tight nomination race.

Wisdom and Tuttle created references challenges that resulted in Eisenhower delegates from Louisiana and Georgia being placed over rival pro-Taft groups. Brown played a lesser role, but was a member of the pro-Eisenhower faction on the Texas delegation and actively helped the commander of World War II run the state. These delegate competitions gave Eisenhower a slim but decisive lead before a parade of switches secured his nomination.

As judges, all three opposed delays in the 1954 Supreme Court decision (also led by an Eisenhower candidate, Earl Warren) that banned segregation in public schools.

The case I covered most closely was the 1962 appeal in which she played a pivotal role in overturning a district judge’s original decision and ordering the enrollment of a Black Air Force veteran, James Meredith, on the previously all-white University of Mississippi. But in many cases they also formed the majority that registrars in the southern states directed to stop practices that discourage blacks from voting.

In many of these judgments, the three Republicans were joined by the court’s only remaining Harry S Truman candidate, Judge Richard Rives of Montgomery, Ala. (Note: your story is told in Jack Bass’ 1981 book, Improbable Heroes.)

During the Ole Miss reversal trial, Charles Clark, a formidable 36-year-old Jackson attorney, was the principal attorney who represented the Mississippi state efforts to prevent Meredith’s enrollment. Bass noted that his professionalism was respected by the judges, even though they rejected his arguments.

President Richard Nixon later named Clark to the 5th Circle bench, symbolizing the changing ideological makeup of the GOP. (Another was his choice of G. Harrold Carswell, whose history of promoting segregation and making racist statements later led the Senate to reject his Supreme Court nomination.) In 1981 the court split. Louisiana and Mississippi stayed at Texas on the 5th circuit, while Florida, Alabama and Georgia moved to the new 11th circuit.

Although Republicans ruled the White House for exactly half the next 40 years, they appointed 25 of the county’s 32 justices, a combination of good timing and successful delays by the Senate Republicans.

A dead end between President Barack Obama and two Texas GOP Senators, John Cornyn and Ted Cruz, kept Obama from filling vacancies after Judge Emilio Garza, an appointee appointed by George Bush who rose to senior status in 2012 , and Judge Carolyn Dineen King, a Jimmy Carter, who did so in 2013. Trump filled the vacancies with two strong Conservatives, James Ho and Don Willett, and eventually filled six of the 17 seats, backed by the Senate GOP majority.

Judge Ho, a former Cornyn counselor and Justice Clarence Thomas employee, was helped by Judge Catharina Haynes, a George W. Bush nominee, to keep Texas’s abortion law in place. Trump-nominated Kyle Duncan and Kurt Englehardt and Judge Edith Jones, the court’s last Ronald Reagan holdover, stopped Biden’s mandate.

In both cases, the final word will come from the Supreme Court, which is dominated by six GOP candidates, including Trump’s three. Trump may have lost the 2020 election, but his legal legacy could last for decades.

Carl P. Leubsdorf is the former head of the Washington office of the Dallas Morning News and is a regular contributor. Email: carl.p.leubsdorf@gmail.com

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