Posted on 07/07/2005 10:32:52 AM PDT by nickcarraway
While the question of who will become the next U.S. Supreme Court justice is a full-time guessing game in Washington, San Antonio faces a mystery on its own doorstep:
Emilio who?
The San Antonio native widely considered a leading contender to fill the vacancy created by Justice Sandra Day O'Connor's resignation Friday is virtually unknown in the county where he was born, raised and still resides.
A low profile comes with the job of federal appeals judge — glamour seldom shines in quiet law libraries — but Judge Emilio M. Garza, who declined interview requests, lowers the profile even more.
"He's a guy who stays home a good deal, not that he's a recluse," said George Spencer Jr., a former partner of Garza's in the law firm then known as Clemens, Spencer, Welmaker & Finck.
Spencer and others who encounter Garza professionally know him to be gracious, hardworking, churchgoing and forthright, but few see him regularly.
The baby-faced bachelor often is described as a loner who zealously guards against appearances of impropriety and has, as a result, distanced himself from many of the local colleagues he once worked alongside.
His office on Northwest Loop 410 has no name, title or insignia on the sign outside its entrance. It isn't even listed on the directory in the building's lobby.
His private persona is balanced, however, by very public rulings, the product of 14 years on the 5th Circuit Court of Appeals, which has final say on most questions of federal law from Texas, Louisiana and Mississippi.
Strong, conservative opinions in cases involving religion and abortion spice his record. And demographics only sweeten his political appeal.
At 57, Garza is not too old to serve a decade or two on the high court.
The son of Mexican immigrants, he would be the first Hispanic justice since Benjamin Cardozo, who was of Portuguese descent.
This portfolio should push Garza high on the White House's list of potential nominees, said Sean Rushton, director for the Committee for Justice, a group formed by a former White House counsel to lobby for conservative judicial appointees.
"He's definitely in the top, I would say, five names or so," Rushton said.
Former Bexar County District Clerk David J. Garcia, a regular at the Jim's Restaurant on Loop 1604 where Garza often stops on his way to work, can't help flustering the judge he describes as shy and humble by asking, "Hey, you taking me with you to the Supreme Court?"
"And he gets all red," said Garcia, who has known Garza since their youth.
Paper trail
Garza knows as well as anyone not to take a nomination too seriously or at least for granted. Fourteen years ago, the first Bush administration interviewed him for the Supreme Court seat that eventually went to Clarence Thomas.
There are those who believe Garza's prospects peaked then.
One of his primary political benefactors, U.S. Sen. Phil Gramm, since has left office. Otherwise, Garza isn't known to have high-powered connections. (He does serve on the advisory board for Notre Dame's law school, where Deputy White House Counsel William K. Kelley taught.)
Others say time only has ripened Garza's chances by giving him time to develop a long and steady record that Republicans now know they can trust.
"He has a very clear paper trail on the things that conservatives ... care about," said Manuel Miranda, a former counsel to the Senate Judiciary Committee and Senate Majority Leader Bill Frist.
The record reveals a jurist who's competent, methodical and deferential to precedent, but not afraid to disagree publicly with colleagues and Supreme Court rulings.
Garza fell in roughly the middle of the pack two years ago when a couple of law professors statistically ranked federal appeals judges who might be elevated to the high court.
Focusing on cases between 1998 and 2000, the study measured how often the judges authored published opinions, how often judges elsewhere cited their decisions, and how often their reasoning demonstrated independence by crossing political lines.
Garza ranked 36 of 74, lower than at least three other judges also believed to be potent contenders: J. Michael Luttig, Edith Jones and Samuel Alito. All three rated in the top 16, according to the weighted formulas developed by Professors Stephen Choi of the University of California at Berkeley and Gaurang Mitu Gulati of Georgetown University.
Ethnicity, however, is a factor that could give Garza an edge over other rivals.
President Bush has aggressively courted Hispanic voters and reportedly would like to name a Latino to the court.
His first choice is believed to be his longtime ally Alberto Gonzales, now the attorney general. Gonzales, however, voted, as a justice on the Texas Supreme Court in ways that alienated opponents of abortion.
Garza is touted by some as the anti-Gonzales.
Garza, unlike Gonzales, would unite conservatives and divide liberals, said Miranda, now chairman of the Third Branch Conference, a coalition group that supports conservative judicial nominees.
Democrat senators might hesitate to oppose Garza because he's Hispanic, while liberal activists would adamantly challenge him because his opinions have been hostile to civil rights and abortion rights.
Another less-cited alternative Hispanic might be Danny J. Boggs, chief of the federal appeals court based in Cincinnati.
Garza, however, is considered to have an advantage over Boggs, because the Ohio judge is of Cuban and Panamanian descent while Garza's roots would resonate with more Hispanic Americans.
"I think, as far as Hispanics go, if it's not Gonzales, the president will turn to Garza," Miranda said.
Church and court
Political calculations aside, the judge's appeal to many conservatives has less to do with ethnicity than religion. The Catholic Church long has been part of Garza's life. He attended Christ the King Catholic School, Holy Cross of San Antonio and the University of Notre Dame.
Near the end of her life, his mother lived in an apartment operated by the Cordi-Marian Sisters. Garza, meanwhile, served on the convent's board of directors for about a decade.
When he worked downtown and needed inspiration, he sometimes attended Mass during his lunch break.
The judge's faith resonated in his jurisprudence, most visibly in cases involving certain hot-button issues, according to an analysis of Garza's rulings from 1998 to 2000.
Normally "neutral, direct and colorless," Garza's rhetoric grew more forceful, for instance, in cases addressing the separation of church and state, said the study's author Alec C. Ewald, now an assistant political science professor at Union College in Schenectady, N.Y.
For instance, Garza found himself alone on a three-judge panel in 1999 when he argued on behalf of Beaumont School District's "Clergy in the Schools" program, which invited members of the clergy to counsel students during class hours.
The majority ruled the program amounted to an unconstitutional government sponsorship of religion.
Dissenting, Garza said the majority's reasoning meant that, "luminaries such as the late Rev. Martin Luther King Jr. and Archbishop Desmond Tutu could not meet individually with students to talk about civic values. The establishment clause does not mandate such an absurd result."
It was one of several rhetorical flourishes, normally absent from the judge's opinions, in the dissent, Ewald noted in the Spring 2002 issue of Law And Courts.
"There is no mistaking Judge Garza's greater personal engagement with this issue than with almost every other," Ewald wrote.
Careful about conflicts
Garza's impassioned rulings stand in contrast to the cautiousness that the judge often has exhibited both inside and out the courtroom. He repeatedly has gone out of his way to avoid potential threats and hints of impropriety in ways that are admired by some and to others seem unnecessary, perhaps even eccentric.
While temporarily presiding as a federal district judge in El Paso, Garza sequestered a jury during the three-week trial of a sophisticated marijuana trafficking conspiracy.
It was a precaution the longtime federal judge in El Paso never had taken in his decade there. What's more, neither prosecutors nor defense lawyers had requested it.
"I've never heard of another jury sequestered for the whole trial," said Mary Schillinger, one of the defense lawyers in the case.
Garza likewise is careful about potential conflicts of interest.
He removes himself from cases involving not only his former firm, but also a lawyer who was a high school friend, even though they long ago stopped socializing regularly.
The same keen sense of propriety also surfaced when a state judge who previously worked in private practice with Garza offered free tickets to one of her political fundraisers. Garza politely declined.
"I have to say that of all the judges I know, probably Emilio takes the most strict approach to that — he really limits social gatherings," said the judge, Phylis J. Speedlin.
Garza was no less cautious as a trial judge.
Once, when he and his staff traveled to hear cases in El Paso, the stenographer forgot his wallet in his hotel room. The judge graciously paid for breakfast.
But later, when they had returned to court and the court reporter had retrieved his wallet, he held out the money to repay the judge.
Garza stopped him and said, never, ever, show money in court. It's not appropriate.
"He told me three times in one day," recalled the stenographer, Gary Hudgins. "He got his point across."
Back to abortion
The case that probably most captures the hopes and fears of Garza's supporters and opponents, respectively, involves, of course, the right to abortion. In 1997, Garza joined his colleagues on the 5th Circuit in striking down a Louisiana law that gave judges excessive authority to deny abortions to juveniles, but his vote came with a caveat.
"For the second time in my judicial career," he began, "I am forced to follow a Supreme Court opinion that I believe to be inimical to the Constitution."
In a lengthy opinion, the judge went on to explain he was reluctantly following Supreme Court precedents that he believed represented little more than unjustified power grabs by the court.
His arguments were familiar music to the ears of many religious conservatives. To liberals, they identified the judge as a foe.
In the eight years since, activists have hardly forgotten his words.
One group, NARAL Pro-Choice America, already has registered a Web site domain that would be used to oppose Garza if he was nominated.
While not yet in operation, the online battlefront already has a name: www.stopgarza.com.
Quite a bit different from Gonzales' assertion that "The Constitution is what the Supreme Court says it is."
In 1997, Garza joined his colleagues on the 5th Circuit in striking down a Louisiana law that gave judges excessive authority to deny abortions to juveniles, but his vote came with a caveat.
If he is one the Supreme Court, he doesn't have to be bound by their decisions like he does on lower courts.
Watch for this false talking point, which manages to slander at once J. Cardozo, the President, and any Hispanic that the President may choose to appoint.
Benjamin Cardozo was a celebrated legal scholar and jurist, and his family did hail from Portugal, but he was a Sephardic Jew (and proud of it). Numerous Jewish legal scholarships, etc., bear his name, including the Cardozo School of Law at Yeshiva University.
The purpose of asserting Cardozo was "Hispanic," when the identity politicians of the Left don't accept European Spaniards, usually, let alone Portuguese, let alone distinct ethnic minorities who chanced to dwell in Portugal, is to deprive any "first Hispanic justice" of legitimacy as such.
Personally, I believe it's stupid to play identity politics with the court. Anybody that makes judicial rulings based on race, nationality, skin tone or sex ought to be competing for a vacancy on a Sharia court in Iran, because we're supposed to make these calls on facts and law, not on race and emotion.
But since our enemies want to play the identity politics game, it's incumbent on us to flag them when they cheat, as this writer just did.
Dirtbag.
d.o.l.
Criminal Number 18F
Very impressive. I particularly like his ethical standards. My only concern is that I wonder if someone so shy could stand up to the public anal exam that would be administered to him by the guardians of all things liberal - Chucky Schumer and Ted Kennedy et al. and be coherently able to defend the originalist interpretation of the Constitution. To be able to defend them in a written opinion is one thing. To be able to verbalize them under the eyes of the nation is another. Scalia is one who can do both. Although he's a lawyer and presumably trained in public speaking to some extent, I've also heard some rather inarticulate ones as well.
This was the only action he can be permitted to make. Appeals judges do not have the authority to overturn SCOTUS decisions, however distasteful. Instead he followed the law as he swore in his oath to do, and expressed his displeasure at doing so in no uncertain terms. If elevated to the Supreme Court he then has the authority and the duty to vote to overturn it. This is perfectly consistent with an originalist interpretation of the rule of law and also acknowledges that he is not one to usurp authority that is not his to begin with.
I sincerely hope the President won't nominate Gonzales (his membership during college in that Aztlan group--MENCHA or whatever the hell the name is--VERY TROUBLESOME,) but I hope he only nominates Garza (who I like) if Garza is the best man for the job and not because of his ethnicity. That kind of thing does people like me a greater disservice than not appointing Garza in the first place.
I concur. Gonzales would be a disaster. Also, during the election, President Bush stated that his standard for choosing someone as a SCOTUS nominee would be that he is an originalist, not just a good buddy. Gonzales has demonstrated on numerous occasions that he is not, in many senses, an originalist. He has also made very clear that border security is not a priority for him, sadly reflecting the attitude of many in this administration. I have no doubt that should he be elevated to SCOTUS his membership or association with MECHA would color any decisions involving illegal immigration, such as eligibility of ILLEGAL non-citizens for benefits intended for tax-paying US citizens. I would hope that conservative groups would continue to make clear their displeasure with the possibility of a Gonzales nomination (not withstanding protests from the Administration to "tone down the rhetoric" and that such an occurrence would have dire consequences at the ballot box for the Republican party.
Anyone know his position on Emerson?
Did he author anything in that decision?
The key 5th circuit appeal in Emerson was heard by a three judge panel -- Garza was not on that pane. JJs. Garwood and DeMoss ruled for the 2nd Amendment as an individual right, and JJ Parker, a Clinton appointee, went the other way. Garwood wrote the opinion, Parker a dissent. (DeMoss signed Garwoods opinion).
The case was then chased to the USSC which did not grant certoriari. Dr. Emerson got a new trial, in which he was convicted.
The Fifth Circuit is on record that the 2nd Amendment is an individual right (which, by the way, is entirely consistent with Miller, if you read all of Miller).
d.o.l.
Criminal Number 18F
He did everything he could do in that circumstance.
OK, tell the truth: Dave Barry wrote that line, didn't he?
So in other words, he admitted to violating his oath. And what the hell does he mean, "forced"? Was someone holding a gun to his head?
What caliber does he carry? The Second Amendment is my litmus test.
Dunno about these days but I'm sure some military folks can tell you what Garza used in the USMC
he carried 556 in the Corps. Don't know what he carries now.
Cut your fellow jarhead a bit of slack here.
Actually, he followed judicial precedent, and made it clear that the precedent conflicts with the law.
I want to know what his stance on the Second Amendment is. Is he a strict Constructionist? "Shall no be infringed"/"Supreme law of the Land". Or is he going to be another one that won't rock the boat and will leave 22,000 unConstitutional Federal gun laws on the books? Is stare decisis and political expediency more important than basic human Rights and their protections as listed in the US Constitution?
I'd say these are rather important issues.
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