5th Circuit Court of Appeals: A rubber stamp, a horse's ass, or just misunderstood?

Since we're on the subject of appellate courts this morning, I should mention two good recent posts about the US 5th Circuit Court of Appeals from Robert Loblaw at Decision of the Day. (The court handles appeals from federal district courts in Texas, Louisiana and Mississippi.) First, he questioned whether the Fifth Circuit's reputation as a prosecutor's rubber stamp may stem from its tendency not to publish anti-prosecution opinions? Loblaw wrote:

The Fifth Circuit tends to have a bad rap here and elsewhere when it comes to affirming criminal convictions and sentences. Could this reputation be due in part to a tendency to relegate its reversals to the dustbin of unpublished opinions? One of these unpublished pro-defendant decisions - not the first I’ve seen in recent weeks - came on Friday, as the Court reversed a drug dealer’s conviction on Confrontation Clause grounds. On appeal, the government had conceded that the testimony at issue violated the defendant’s Sixth Amendment rights, but argued that the error was harmless. The panel disagrees with the latter proposition, explaining that it cannot conclude that the admission of the offensive statements was harmless beyond a reasonable doubt. The panel even cites the Ninth Circuit for its harmless error analysis. No wonder the decision is not published.

Certainly this blog is one of the "elsewhere's" where the 5th Circuit has a bad rap. Maybe some attorney can explain it to me, but I don't see why the court wouldn't issue written opinions on EVERY reversal - otherwise how can lower courts know what they've been doing wrong and change their practices? Who knows, maybe the Fifth Circuit would look more reasonable if we saw more of their opinions.

Loblaw had equally good commentary on another Fifth Circuit case in the papers today: The 5th reversed a lower court ruling which itself had overturned a Texas state law banning the slaughter of horses for human consumption. (Two Texas plants slaughter horses for foreign consumption, said the AP.) Wrote Loblaw:

Judge Benavides’ opinion wins my vote for best opening line of the month: "The lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality." In a footnote, he adds that "thieves would occasionally eat the cowboys' horses."

I have no idea what I think of the opinion, or whether I care about foreigners eating Texas horsemeat. But you've gotta agree with Loblaw that Benavides' at least put some thought into that opening line. (For the record: AP quoted Charlie Stenholm, who oughtta know what he's talking about, declaring "Those who want these plants to shut down should be careful what they wish for ... If these plants shut down tomorrow, the nation's patchwork of horse rescue facilities would be overwhelmed. They can barely manage to care for the approximately 6,000 horses already in the system.")

Following the lead of the good folks at Above the Law, I questioned earlier who might fill the two vacant Texas positions on the 5th Circuit, and got a slew of interesting reader responses. I need to go through that information and follow up at some point, but it's worth mentioning that one of the names floated in that post, Texas Solicitor General Ted Cruz was the metaphorical thumb on the nose of the Texas Court of Criminal Appeals who just argued the case for "harmless error" in Smith v. Texas.

Please let me know, gentle commenters, whenever you've got any more gossip on possible 5th Circuit appointments.