The fate of deepwater oil drilling in the Gulf at times has rested on a group of judges that receives far less attention than the Supreme Court: the U.S. Court of Appeals for the 5th Circuit, which oversees federal appeals in Louisiana, Mississippi, and Texas. After U.S. District Judge Martin Feldman overturned the Obama administration's moratorium on drilling, the administration appealed his decision to the 5th Circuit. Three judges, Jerry Smith, W. Eugene Davis, and James Dennis, heard the arguments in New Orleans July 8 and upheld the judge's ruling, banning the drilling ban. With a new moratorium in place, further court challenges are possible.
In this scenario, the Supreme Court isn't much of a remedy to litigants. The lower court judges can act with dispatch-hearing the administration's arguments and ruling within 24 hours. The Supreme Court grants a hearing months and months ahead of time and often doesn't issue a decision for months and months. The high court hears about 1 percent of cases appealed from the lower courts-so the vast majority of appeals courts' decisions become settled law.
Few people are familiar with the judges who decide 99 percent of federal appeals-but several who await confirmation in the Senate have controversial backgrounds. Two in particular conservatives are fighting:
Robert Chatigny nominated to the 2nd Circuit
Chatigny was the judge who tried to stay the execution of serial killer and rapist Michael Ross in 2005-a stay the Supreme Court overturned. Ross confessed to the crimes and said that he derived sexual gratification from strangling his victims. But Chatigny said Ross "may be the least culpable, the least, of the people on death row" and suggested "he never should have been convicted." Instead of deeming the sexual sadism an aggravating factor, Chatigny considered it a mitigating factor-as if Ross suffered from a mental illness.
Chatigny has said recently he regrets "very much my choice of words" about whether Ross should have been convicted. The judge also urged the public defender to request a stay of Ross' execution, saying he would "have his law license" if he discovered Ross was incompetent to appeal further. A panel of federal judges reviewed Chatigny's actions, saying they weren't improper, but "unusual."
Goodwin Liu nominated to the 9th Circuit
The 9th Circuit, covering the West Coast, has a solidly liberal reputation. Liu has that reputation, too. He has suggested that racial reconciliation isn't possible without affirmative action and perhaps reparations for slavery. In comments on a documentary, Traces of the Trade, he said, "What are we willing to give up to make things right? Because it's gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money? It's gonna require giving up something, and so until we can have that further conversation of what it is we're willing to give up, I agree that the reconciliation can't fully occur."
He says the Constitution "adapts to the many changes the country would confront." He also supports gay marriage, and the constitutionality of California's Proposition 8 law banning gay marriage is likely to come before the 9th Circuit. Still, Liu has been much more transparent about his opinions than Supreme Court nominee Elena Kagan-and those opinions may sink his confirmation.
Senate Majority Leader Harry Reid could hold a vote on either nomination anytime, but he may push the potentially controversial votes back to after the midterm elections.
• 179 total federal appellate judges
• 20 current vacancies
• 12 nominations pending
7 awaiting floor vote:
Goodwin Liu: 9th Circuit
Robert N. Chatigny: 2nd Circuit
Raymond J. Lohier Jr.: 2nd Circuit
Scott M. Matheson Jr.: 10th Circuit
James A. Wynn Jr.: 4th Circuit
Albert Diaz: 4th Circuit
Jane Branstetter Stranch: 6th Circuit
5 awaiting a committee vote:
James E. Graves Jr.: 5th Circuit
Susan L. Carney: 2nd Circuit
Edward C. DuMont: Federal Circuit
Mary H. Murguia: 9th Circuit
Kathleen M. O'Malley: Federal Circuit