Emanuel on Judge Tuttle

Professor Anne Emanuel writes to the NLR Blog on Peppers, Vigilante, and Zorn’s recent article about Judge Tuttle of the Fifth Circuit.

In  Random Chance or Loaded Dice: The Politics of Judicial Designation, 10 UNH L Rev 69, authors Dr. Todd C. Peppers, Dr. Katherine Vigilante, and Professor Dr. Christopher Zorn charge former Chief Judge Elbert Tuttle with packing conventional three judge appellate panels with judges who shared “the chief judge’s political preferences.” They rely in particular on  A Court Divided: The Fifth Circuit Court of Appeals and the Politics of Judicial Reform by Deborah Barrow and Thomas Walker, but in fact neither Barrow and Walker nor any other published scholar or researcher (including, inter alia, Jack Bass, J. Robert Brown, Jr., Joel Friedman, Lucy McGough, and Frank Read and myself)  has concluded that Judge Elbert Tuttle “packed” conventional three judge appellate panels.  In fact the evidence is strongly, even conclusively, to the contrary.  See, e.g., my biography of  Judge Tuttle — Elbert Parr Tuttle: Chief Jurist of the Civil Rights Revolution, UGA Press 2011, pp. 252-266.

In the civil rights era, three-judge district courts were convened pursuant to 28 USC 2281 (until its repeal in 1976) whenever a state statute was attacked as unconstitutional. Tuttle construed the statutory power of the Chief Judge of the Circuit to designate members of the panel as  judicial, not administrative.  Because of his understanding of  his responsibility, after it became apparent to Tuttle that Judge Cameron simply would not follow the law as established in Brown v. Board of Education, Tuttle declined to appoint Cameron in cases where, in Tuttle’s view, that stance disqualified him. Id. at 260. It bears noting that Tuttle’s determination re Cameron’s position was not a matter of “political preference”; instead it was his apprehension that Cameron had openly declared himself an obstructionist in, e.g.,  his dissent in Boman v. Birmingham Transit Co., 292 F.2d 531 (5th Cir. 1960). In addition, Judge Cameron had issued four separate stays of the injunction ordering James Meredith’s admission to the University of Mississippi.. Although the first three were quickly vacated by the panel, of which he was not a member, Judge Cameron was undeterred. Only after Meredith’s attorneys filed a motion with Justice Hugo Black, and Justice Black responded by vacating the fourth stay, affirming the panel in vacating the earlier three stays, and noting that although as Circuit Justice he had the power to act alone on this matter he had sought and obtained the agreement of each member of the Court, did Cameron desist.

With reference to conventional appellate panels, Tuttle’s predecessor as Chief, Judge Joseph Hutcheson, had delegated control over the assignments to Judge John Brown, who continued in that role under Tuttle.  The historical record does strongly suggest  that Judge Brown attempted to manipulate panel assignments in civil rights cases based on the predilections of his colleagues. He apparently succeeded in one case, Ross v. Dyer, 312 F.2d 191 (5th Cir. 1962)(Houston school desegregation), by directing a hearing date after he had learned what panel would be sitting. Elbert Parr Tuttle, p. 263.  But the record indicates any other efforts were unsuccessful–in large part because Tuttle had instructed the clerk to “let [the cases] fall when, where, and before whom they will.” Id.

In their assault on Tuttle’s integrity, the authors also use the fact that he instructed the clerk not to assign Judges Griffin Bell and Walter Gewin to civil rights cases while their confirmations were pending.  Both received recess appointments on October 5, 1961; their temporary commissions expired at the end of the next Senate session, and their continued service depended on nomination by the president for a permanent commission and confirmation by the Senate (they were confirmed on February 5, 1962). According to Tuttle, he made the decision to insulate them after Griffin Bell came by his office in September of 1961, ostensibly to discuss Walter Gewin’s concern that if he accepted an interim appointment and sat on a civil rights case, emotions ran so hot that however he ruled he would be unlikely to be confirmed for a permanent commission. Id. at 260.  Tuttle later regretted his decision because he had helped to facilitate recess appointments, a process he came to believe presents such enormous jurisprudential hurdles that it should be proscribed. Id. at 261.

Whatever the legitimacy of his decision to insulate Bell and Gewin, it hardly supports a thesis that Tuttle was stacking panels with colleagues who shared his views.  With reference to their commitment to protecting the constitutional rights of black Americans, Tuttle was wary of both men, with good reason. Id. He protected them not because he thought they shared his understanding of the law but because he believed in the political process that brought them to the court. Id. Tuttle’s commitment to the rule of law included supporting the constitutional role of the president and the senate.

The authors are correct in their assertion that the manner of assignment of judges is of critical importance and that lack of oversight and control creates the possibility that assignments can be inappropriately manipulated–an arrogation of power that would undermine the legitimacy of the judiciary. That said, their misreading of the work of Barrow and Walker undermines what might otherwise be a valuable contribution.

Anne Emanuel, Professor (retired), Georgia State University College of Law

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