I think the debate about Todd Butler's nomination to the Fifth Circuit has been revealing. There is no actual argument that Butler bears resemblance to any of the other Fifth Circuit nominees over the past three decades. Instead, the argument goes, he has done enough to meet some arbitrary threshold for a circuit court nomination, and those who disagree are idiots. I don't pretend to be an expert in politics. Indeed, were I someone seeking the favor of those in power, I would just keep my mouth shut. Talk less, smile more, as they say. But I never keep my mouth shut. Instead, I read the decisions of the Fifth Circuit very closely and talk about them.
Friends and those who support the nomination have pointed to a few things in Butler's defense. First, Butler wrote very strong briefs defending qualified immunity on behalf of paying clients. Okay. QI is an issue that divides conservatives. Justices Scalia and Thomas did not agree. Judges Willett and Oldham do not agree. This is not exactly a useful predictor of Judge Butler's jurisprudence. And there is nothing particularly controversial about this work. No one receives a medal of courage for insurance defense work.
Second, Defenders have also pointed to the responsibility of becoming the managing partner of Phelps Dunbar's office in Jackson, Mississippi. Phelps Dunbar has 18 offices and about 500 lawyer. By my count, there are about 30 attorneys in the Jackson office, including one of Butler's most vigorous defenders on social media. Okay. That responsibility is something. I suppose the managing partners of the seventeen other offices are also viable nominees for the Fifth Circuit. Same for the managing partners at each of the offices for all of the other firms on the AmLaw 200.
