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.
"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."
Plus Benjamin Cardozo was also appointed to the Supreme Court by Republican President - Herbert Hoover.
Your opinion, mine is that the SCOTUS made new law, hence my use of the term law rather than precedent.
You are correct. He need not have voted for something he believed unconstitutional despite a prior Supreme Court ruling.
In fact, I recall reading a thread here on this forum of a Judge who did just that, and his ruling was never challenged or overturned (likely because he got it right). Wish I could remember more detail then that about the case, but apparently it has happened, at least once.
If the Supreme Court gets it wrong, it should be a Judges' duty to uphold the Constitution, not the erroneous decision.
Not bashing Garza here, but there is precedent for this sort of thing. It's called sticking your neck out for what you believe in.
Nicely put. I couldn't agree more.
Thanks. I enjoy your posts and think that you are a true patriot.
Keep up the good fight. ;-)
I'm going by Garza's own opinion, which is that SCOTUS's precedent conflicted with the Constitution (i.e., the law). But he upheld the precedent anyway. By his own admission, therefore, he violated his oath.
I think I know what you're referring to, though all I remember is that it had to do with the Japanese internment during WWII. At the time, SCOTUS upheld it, but in the '80s, a lower court said it was unconstitutional, and SCOTUS never overruled that decision.
Yep. Whom Cardozo had opposed for election. Cardozo was basically closer to Republicans on foreign policy and business, but he could not stand the anti-Semites who were at that time powerful in the Republican Party.
d.o.l.
Criminal Number 18F
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