W's Fifth Circuit judges to rule on abortion, more diverse trio on gay marriage

Nice draw, if you're a conservative extremist.

The latest review of Texas's tough new abortion law will be conducted next week by a trio of federal judges who have been largely supportive of the law in the past, according to case assignments revealed Monday.

A hearing the same week on the constitutionality of the state's same-sex marriage ban, on the other hand, will get a more unpredictable bench.

The random selections will force opponents of the abortion law and same-sex marriage ban to hope for a long-shot victory, said Edward Sherman, a Tulane University Law School professor who has followed the court for years.

"It's a pretty conservative lineup," Sherman said. "If political ideology is still at the heart of both of these issues, I would expect pro-defendant decisions."

Fifth Circuit Court of Appeals Judges Jennifer Walker Elrod and Catharina Haynes, who both voted earlier this year to uphold the abortion law, known as House Bill 2, will join Judge Edward Prado on the panel that next Wednesday will hear oral arguments on the latest challenge from abortion providers, the court announced.

All three were appointed to the bench by President George W. Bush.

There will be more variety on the panel slated to hear the same-sex marriage case next Friday, with Judge James Graves Jr., a President Barack Obama appointee, serving alongside Judges Jerry E. Smith and Patrick Higginbotham, who were both appointed by President Ronald Reagan.

The Dallas News has more on Higginbotham, who might be the swing vote.

Once considered solidly conservative, Higginbotham has irritated some conservatives with his rulings critical of Texas judges’ handling of death-penalty cases and a recent decision in which he wrote an opinion upholding the University of Texas’ race-conscious admission policy.

In 1976, former President Gerald Ford, a Republican, selected Higginbotham to serve as federal district judge in Dallas. Higginbotham moved up to the appellate court six years later, amid speculation he was Supreme Court material.

The talk has faded. Higginbotham, 76, is on senior status.

“He’s probably right in the middle of that court and well-regarded,” (University of Richmond law professor Carl) Tobias said. “It’s just hard to know where he might be on this issue.”

Lone Star Q  has more, linking to the Wikis of the judges on the gay marriage case.  Let's take note of Higginbotham's reveal.

Last summer, Higginbotham told The Texas Lawbook’s Mark Curriden that the New Orleans court has shifted considerably to the conservative side during his 32 years as a member.

“When I joined the 5th Circuit, I may have been the court’s most conservative judge,” he said. “Now, I’m probably left of center, even though I don’t think I’ve changed my views at all.”

Not exactly breaking news, just potent for its candor.

Both cases will make their way to the Supremes irrespective of how the appellates decide them, so we'll note for the record that predicting their outcomes -- perhaps predicting the outcome in the gay marriage case, I should say -- will be 2015's first legal parlor game.