Patrick Higginbotham

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Patrick Higginbotham
Higginbotham Patrick E.jpg
Senior Judge of the United States Court of Appeals for the Fifth Circuit
Assumed office
August 28, 2006
Judge of the United States Court of Appeals for the Fifth Circuit
In office
July 30, 1982 – August 28, 2006
Appointed by Ronald Reagan
Preceded by Reynaldo Guerra Garza
Succeeded by Jennifer Walker Elrod
Judge of the United States District Court for the Northern District of Texas
In office
December 12, 1975 – August 3, 1982
Appointed by Gerald Ford
Preceded by Sarah T. Hughes
Succeeded by A. Joe Fish
Personal details
Born Patrick Errol Higginbotham
1938 (age 79–80)
McCalla, Alabama
Education University of Alabama (B.A.)
University of Alabama School of Law (LL.B.)

Patrick Errol Higginbotham (born 1938) is a Senior United States Circuit Judge of the United States Court of Appeals for the Fifth Circuit. In 2005, he moved his chambers from Dallas, Texas to Austin, Texas.

Education and career[edit]

Born in McCalla, Alabama Higginbotham received a Bachelor of Arts degree from the University of Alabama in 1960, attending on a tennis scholarship. He received a Bachelor of Laws from the University of Alabama School of Law in 1961. He was in the United States Air Force, JAG Corps from 1961 to 1964. He was in private practice of law in Dallas, Texas from 1964 to 1975. He was an adjunct professor of constitutional law at the Southern Methodist University School of Law in 1976.[1]

Federal judicial service[edit]

Higginbotham was nominated by President Gerald Ford on December 2, 1975, to a seat on the United States District Court for the Northern District of Texas vacated by Judge Sarah T. Hughes. He was confirmed by the United States Senate on December 12, 1975, and received commission the same day. His service was terminated on August 3, 1982, due to elevation to the Fifth Circuit.[1]

Higginbotham was nominated by President Ronald Reagan on July 1, 1982, to a seat on the United States Court of Appeals for the Fifth Circuit vacated by Judge Reynaldo Guerra Garza. He was confirmed by the Senate on July 27, 1982, and received commission on July 30, 1982. He assumed senior status on August 28, 2006.[1]

Supreme Court consideration[edit]

In 1986, when the nomination of Robert Bork to the Supreme Court of the United States was flailing, Higginbotham was widely considered the leading replacement candidate. After Senators Lloyd Bentsen and Dennis DeConcini came out in support of his nomination, the Reagan administration, unwilling to allow the senators to both prevent the appointment of Bork and dictate the next nominee, declined to nominate Higginbotham.[2][3] The nomination eventually went to Justice Anthony Kennedy.

Other service[edit]

For many years, Higginbotham was a faculty member at the Federal Judicial Center and, as an appointee of Chief Justice William Rehnquist, the chairman of the Advisory Committee on Civil Rules. He served as president of the American Inns of Court Foundation, and in 1996 the Dallas chapter of that organization renamed itself after him. He has been a leading proponent and former chairman of The Center for American and International Law, a Dallas-based organization which aims to train foreign and domestic lawyers and police officers, a Fellow of the American Bar Association, chairman of its Appellate Judges Conference, member of the Board of Editors of the ABA Journal, and advisor to the National Center for State Courts on its study of habeas corpus. He is also a lifetime member of the American Law Institute and a member of the Board of Overseers, Institute of Civil Justice, RAND Corporation.

Speeches and writings[edit]

Higginbotham has published a number of articles in law reviews and newspapers.[4] He is also a frequent speaker on various legal topics, particularly the death penalty and the decline of jury trials, having lectured at places including the Universities of Alabama, Chicago, St. Mary's, Texas, Texas Tech, Columbia, Duke, and Penn, as well as Case Western, Northwestern, Utah, Loyola, Hofstra, the National Science Foundation, The American College of Trial Lawyers and the National Institute of Trial Advocacy.

Law clerks[edit]

Many of Higginbotham's clerks later clerked on the Supreme Court. His former clerks include Princeton University president Christopher L. Eisgruber, Iowa Supreme Court Justice Edward Mansfield, University of Pennsylvania Law School professor and United States Circuit Judge for the Third Circuit Stephanos Bibas, Harvard Law School professor James Greiner, University of Michigan Law School professor Kyle D. Logue, New York University School of Law professor Roderick Hills Jr., University of Texas School of Law professor Henry Hu, George Washington University Law School professor Michael B. Abramowicz, University of Illinois College of Law professor Jay P. Kesan, George Mason University School of Law professor Nelson Lund, and Adam K. Mortara of Bartlit, Beck, Herman, Palenchar & Scott LLP, William H.J.Hubbard of the University of Chicago Law School, Cheryl M. Joseph, Williams & Connolly, Robert Little, Gibson Dunn, Renato Mariotti, of Thompson Coburn LLP and former Assistant United States Attorney, Northern District of Illinois, Elizabeth M. Tulis, Assistant United States Attorney, Southern District of New York, and Sharon Freytag, Haynes and Boone.

Notable Opinions[edit]

  • In In re LTV Securities Litigation, 88 F.R.D. 134 (N.D. Tex. 1980), Higginbotham formulated one of the earliest versions of the "fraud on the market" theory of loss causation, using language later quoted by the Supreme Court when it adopted the theory, see Basic, Inc. v. Levinson, 485 U.S. 224, 244 (1988).
  • In Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc), Higginbotham allowed under Rule 7 notice pleading in potential qualified immunity cases but required, in reply to an allegation of qualified immunity, more detailed pleading, a tack later approved by the Supreme Court.
  • In Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), Higginbotham upheld the Religious Freedom Restoration Act against the claim that the Act exceeded Congress's powers under the Fourteenth Amendment. The Supreme Court later reversed the decision.
  • In Doe v. Beaumont Independent School District, 240 F.3d 462 (5th Cir. 2001) (en banc), Higginbotham found that public school students and their parents had standing to challenge district's "Clergy in Schools" volunteer counseling program and that facts issues required reversal of summary judgment to defendants.
  • In Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), Higginbotham upheld against an Establishment Clause challenge a Ten Commandments display on the Texas State Capitol, concluding that its secular history and purpose rendered it constitutional. The Supreme Court later affirmed.
  • Between 2000 and 2006, Higginbotham, sitting as the Circuit Judge along with two district judges in a Voting Rights Act three-judge panel, twice changed Texas's Congressional districts. His later effort, which struck a balance between competing interests while hewing closely to the Texas legislature's intent, was widely hailed.[5]


Higginbotham continues to maintain a full workload on the court, though he has taken Senior status. He is Jurist in Residence at St. Mary's University School of Law in San Antonio, Texas, where he teaches courses in Constitutional Law and Federal Courts. He has also taught at the University of Texas School of Law, the University of Alabama School of Law, the Southern Methodist University Dedman School of Law, and the Texas Tech University School of Law. The University of Alabama School of Law maintains an endowed scholarship in his name. He was married to Elizabeth O'Neal Higginbotham until her death on June 10, 2017, at the age of 78.[6] They have two daughters, Anne Elizabeth and Patricia Lynn, and 6 grandchildren. He lives on his ranch in Blanco, Texas.

See also[edit]


  1. ^ a b c "Higginbotham, Patrick Errol - Federal Judicial Center". 
  2. ^ Newsweek, Vol. 116, p. 61 (1990).
  3. ^ Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, p. 62 (2007).
  4. ^ See, e.g., Two Judges' Persepctives on Trial by Jury, 12 Tex. Wesleyan L. Rev. 1201 (2006); So Why Do We Call Them Trial Courts?, 55 S.M.U. L. Rev. 1405 (2002); Foreword, 54 S.M.U. L. Rev. 1679 (2001); Thoughts About Professor Resnick's Paper, 148 U. Pa. L. Rev. 2197 (2000); A Note About a Colleague, 76 Tex. L. Rev. 905 (1998); The Continuing Dialogue of Federalism, 45 U. Kan. L. Rev. 985 (1997); Irving L. Goldberg Memorial, 73 Tex. L. Rev. 975 (1995); Notes on Teague, 66 S. Cal. L. Rev. 2433 (1993); Juries and the Death Penalty, 41 Case W. L. Rev. 1047 (1991); Reflections on Reform of Sec. 2254, 18 Hofstra L. Rev. 1005 (1990); Text and Precedent in Constitutional Adjudication, 73 Cornell L. Rev. 411 (1988).
  5. ^ Burka, Paul, Senior Executive Editor of Texas Monthly (2006). Exit Lines. Retrieved 2007-01-01.
  6. ^ Dallas Morning News, June 14, 2017.

External links[edit]

Legal offices
Preceded by
Sarah T. Hughes
Judge of the United States District Court for the Northern District of Texas
Succeeded by
A. Joe Fish
Preceded by
Reynaldo Guerra Garza
Judge of the United States Court of Appeals for the Fifth Circuit
Succeeded by
Jennifer Walker Elrod