April 14, 2023

Fill the Fifth Circuit Vacancy

Russ Feingold President

Last week, a single federal judge sought to overturn the Federal Drug Administration’s (FDA) longstanding approval of Mifepristone, one of the two drugs most often used in medication abortion. If Judge Kacsmaryk’s partisan and legally unhinged decision is upheld, it could result in pregnant people across the country being denied a safe and effective drug that has been used by over 5 million people and is safer than Tylenol.

Judge Kacsmaryk’s decision was quickly appealed this week to the Fifth Circuit, which promptly issued a partial stay of the decision pending appeal. The Fifth Circuit decision would allow for continued access to Mifepristone while the litigation plays out, but allowed the district court to turn back the clock several years and reintroduce restrictions that would bar it from being sent through the mail in 33 states and create further confusion and fear for both patients and providers. While an improvement from Kacsmaryk’s even more sweeping and devastating decision, the Fifth Circuit’s decision could nonetheless result in significant, unnecessary burdens to accessing Mifepristone, a proven safe medication relied on by many seeking abortion care. The Department of Justice is appealing the decision to the U.S. Supreme Court, which created the opportunity for this very litigation with its disastrous opinion last year in Dobbs v. Jackson Women’s Health.

Combined, Judge Kacsmaryk and the Fifth Circuit have given us yet another example of the power of federal judges and of why the White House and Senate must prioritize filling every single federal vacancy. This includes the long-standing vacancy on the Fifth Circuit. Good news: today, President Biden nominated Magistrate Judge Irma Ramirez to fill this vacancy. This nomination could not come at a more critical time.

The Fifth Circuit is considered the most partisan and conservative appellate court in the United States – and for good reason. It routinely thumbs its nose at precedent, judicial restraint, and sound legal reasoning, and hands down blatantly partisan decisions that defy law and fact. Just as conservative litigants are seeking out Judge Kacsmaryk’s court in Amarillo, TX, to file their lawsuits, conservative litigants have favored the Fifth Circuit for years, trusting it to uphold and issue extremely partisan decisions.

The Fifth Circuit has contributed to some of the most egregious appellate decisions in recent years, from striking down the Affordable Care Act, to reinstating Texas’ extreme abortion ban, to declaring the Consumer Financial Protection Bureau unconstitutional. Even the Supreme Court has balked at times at decisions from this unrestrained and partisan circuit.

Over the years, the Fifth Circuit has been stacked with staunchly conservative judges appointed by conservative administrations. President Trump appointed six of the 16 active judges on the circuit, including one who called abortion a “moral tragedy,” and one who thinks same-sex marriage “imperils civic peace.”

A panel of three judges is typically selected from the 16 active judges (usually 17) on the Fifth Circuit to hear any one case. With so many judges on the Circuit, is it so important that the White House and Senate fill the one vacancy? Yes. In no uncertain terms, yes.

A circuit court’s commitment to the rule of law, to precedent, and to legal reasoning cannot be restored by the filling of a single vacancy. That said, restoring order to the Circuit starts by filling a single vacancy with a diverse, qualified judge who is committed to the rule of law and to vindicating fundamental freedoms. Any vacancy on the Circuit should be prioritized as an opportunity to begin to restore the Court to one that is bound by law and fact rather than political ideology.

Moreover, the active judges on the Fifth Circuit are 75 percent white and 69 percent male. Any vacancy is an opportunity to bring a diverse perspective to the Court and move it closer to one that reflects the diversity of the public it serves. Right now, there is no active Latinx judge on the Fifth Circuit, despite the large Latinx population in the circuit. This further underscores the importance of Judge Ramirez’s nomination and upcoming confirmation process.

And consider this. Two vacancies on the Fifth Circuit opened up during President Obama’s tenure. Due to GOP obstruction, President Obama was unable to fill either of those vacancies, leaving them vacant when President Trump was sworn in and contributing to Trump’s impact on moving the Fifth Circuit further to the Right. This is just one of the many reasons why we are spending so much time and effort advocating for the White House and the Senate to fill every single federal vacancy while they can. In this pursuit, Judge Ramirez’s nomination today is a hopeful sign that the current vacancy on the Fifth Circuit will be filled well before the end of 2024.

The Senate also needs to do its part to maximize confirmations – circuit and district court alike. That means eliminating blue slips first and foremost. The judicial confirmation process has been amended time and time again over the past decade. One example, the GOP eliminated blue slips for circuit court nominations during the Trump administration. To pretend now that the confirmation process is or should be preserved in amber is to fail to meet this critical moment to confirm judges who are committed to the rule of law and to safeguarding democracy.

Importance of the Courts, Reproductive Rights, Women's rights