A Reason contributor has cast doubt on the nomination of Judge Todd Butler to the Fifth Circuit, arguing that Butler may not be the reliable conservative his supporters claim. The piece pushes back on the idea that Butler is preferable to a proven liberal like Carlton Reeves, noting that Judge Southwick—whose seat Butler would fill—has a record that defies easy categorization.
The author points out that more than 90% of Fifth Circuit cases are unanimous, meaning the nomination's real impact would be felt in the small share of en banc disputes. In those cases, Southwick has voted with Democratic appointees in nearly every significant ideological battle over the past decade. A 2022 analysis gave Southwick a zero score when compared to conservative stalwart Edith Jones, and the author says his voting has only moved further in that direction since.
If Butler is confirmed and turns out to be a clone of Southwick, the court could end up with two center-left votes instead of one. That could split conservative victories that previously passed 9-8, leaving the court deadlocked. The author says he would rather have the 75-year-old Southwick cast a single vote for the foreseeable future, followed by a liberal like Reeves, than have Southwick plus a younger Butler casting two votes. He also notes that Southwick could rescind his senior status request if Butler is rejected, but that such a move would tarnish his reputation. The piece concludes by saying that assurances of Butler's conservatism are unproven, citing his criticism of Justice Scalia and his description of street preachers as domestic terrorists.