An essay in Reason's Volokh Conspiracy argues that Todd Butler's nomination to the U.S. Court of Appeals for the Fifth Circuit rests on thin credentials. The author, writing as "Ask Jeeves," says supporters have pointed to Butler's briefs defending qualified immunity, his role as managing partner of a Jackson, Mississippi law office, and his attendance at Federalist Society events. None of these, the essay contends, amount to a record of public service or constitutional law experience comparable to past Fifth Circuit nominees.
Comparing Butler to Judge Edith Jones, who served as general counsel of the Texas GOP before her appointment, the author argues that Jones was actively building the Republican Party in a then-Democratic state, while Butler's career has been primarily in private practice. The essay also notes that Judge Jerry Smith was Houston's city attorney and argued a Supreme Court case. The author says he would welcome a direct comparison to those judges, but finds Butler's record lacking.
The most significant point is the prediction of Butler's future votes. The essay observes that Butler is seen as Judge Leslie Southwick's chosen successor, and lists several recent Fifth Circuit en banc cases where Southwick dissented from conservative majorities, including cases on immigration, the Ten Commandments, library book removals, and SEC rules. If Butler follows Southwick, the author suggests, his votes may not align with the court's conservative wing.
A law student clerking on the Fifth Circuit is quoted as saying the nomination sends a dispiriting message, rewarding those with connections rather than those who have dedicated themselves to public service. The essay concludes that Butler's nomination may become another "Judge Ozerden situation," a reference to a previous failed nominee.