Which court is worse?

Scott Henson, a criminal justice reform activist in my hometown, asks this question on his blog. Which court is worse, the federal Fifth Circuit Court of Appeals, which is based in New Orleans and has jurisdiction over Texas, Louisiana and Mississippi, or the Texas Court of Criminal Appeals, which is the highest court in Texas that deals with criminal matters.

It is a tough call, but a relevant one, given that the U.S. Supreme Court is hearing arguments this morning in the case of Thomas Miller-El. (Scroll down a bit to get to the appropriate entry.)

Rather than answer Scott's question directly, I want to talk about the Fourth Circuit Court of Appeals a bit. The Fourth Circuit, which has jurisdiction over North Carolina, South Carolina, West Virginia, Maryland and Virginia, is extremely conservative. But judges who sit on that court really seem to base their decisions on the law, although I grant you that it is a most conservative reading of the law.

Contrast that court with the Fifth Circuit and the Texas CCA. These courts are simply pro-prosecution and anti-defendant, but they do not seem to base their hostility against the individual on any judicial philosophy. Rather, they seem to identify the result they want to reach and then fashion their opinions, however sloppily, to meet that result.

In my mind, both the Fifth Circuit and the Texas CCA are embarrassments, compared with the Fourth Circuit, which is merely objectionably conservative. This is why we probably will see, at some point in the next four years, a Supreme Court nomination come out of the Fourth Circuit and not the Fifth.

In any case, it's a good question that Scott asks. Drop him a line and weigh in!