WASHINGTON, DC – Establishment politicians appear to be pushing President Trump to nominate a judge to the Fifth Circuit federal appeals court who could deflate the president’s base and deprive him of a historic opportunity to help make the Fifth Circuit the most conservative federal appellate court in the nation.
President Trump promised during the campaign to nominate only judges like Justice Antonin Scalia, the famed originalist and brilliant scholar who served on the nation’s highest court for 30 years before unexpectedly passing away in 2016.
The president has reliably delivered on his campaign promise to appoint Supreme Court justices and federal judges like Scalia, who adhere to the Constitution and federal laws as they are written, leaving politics and policy judgments to elected leaders like the president, Congress, and the states.
The two courts President Trump has had the greatest impacts on so far with Scalia-like originalists and textualists (which non-lawyers call “constitutionalists” or “strict constructionists”) are the U.S. Courts of Appeals for the Sixth Circuit and Eighth Circuit, covering the eastern Midwest and the Great Plains, respectively.
But only one step behind is the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Louisiana, and Mississippi. President Trump’s Senate-confirmed picks of Judges Don Willet, Jim Ho, Kyle Duncan, and Kurt Engelhardt have been runaway successes for the president, thrilling his base while earning the respect of moderate voters. And his remaining nominee for the New Orleans-based appeals court, Andy Oldham, is a darling of conservative legal circles, which eagerly await his Senate confirmation to the bench.
There is one more vacancy to be filled, after which President Trump will in less than two years have appointed six of the 17 judges serving lifetime positions on this powerful court.
But rumors are circulating in D.C. that some establishment politicians are pressuring the president to appoint a judge who has a mixed record and no true conservative credentials, potentially endangering the president’s perfect record on this southern appeals court.
Judge Halil Suleyman Ozerden is currently a district court judge in the Southern District of Mississippi, one with an unusually high reversal rate by the Fifth Circuit, the court that some establishment Republicans are trying to get him promoted to.
Ozerden’s time on the federal trial bench shows a consistent pattern of refusing to lead or to take a stand on important legal issues, leading critics to say that he would not be the sort of judge who fulfills President Trump’s promise.
One decision that alarms Catholics and Evangelicals was his unwillingness to rule in favor of people of faith when they sued over the Obamacare abortion-pill mandate. That mandate is the Obamacare regulation, created by Barack Obama’s U.S. Department of Health and Human Services, requiring employers like Hobby Lobby and Catholic nuns like the Little Sisters of the Poor to provide contraceptives and abortion-inducing drugs, which would years later be struck down in large part by the Supreme Court.
When a Catholic Diocese in Mississippi sued to assert its religious rights against the mandate, Ozerden dismissed the lawsuit, claiming the case was “not ripe” for a federal court to rule on its claims. In doing so, Ozerden ignored the parties’ arguments as to why they were suffering real harm to their religious-liberty mission, refusing to rule on their claims that the abortion mandate violated their rights under the U.S. Constitution and federal law.
On May 4, 2017, President Trump in Executive Order 13798 commanded HHS to create exemptions for people and organizations of faith from Obamacare’s abortion-pill mandate. Ozerden was unwilling to provide similar relief in 2012 in Catholic Diocese of Biloxi v. Sebelius, although conservative legal experts contend that he had full authority to do so.
Another case arose out of Hurricane Katrina, where an insurance company filed a lawsuit saying that a claimant’s treatments for cancer were not covered by the company. The hurricane had destroyed the family’s copy of the policy, and at first they filed a response that admitted the non-coverage claim by the insurance company. But the family then attempted to file affidavits with sworn statements denying the insurance company’s assertion. Ozerden sided with the insurance company, dismissing the case.
In Time Insurance Co. v. White, the Fifth Circuit reversed in a unanimous decision written by Judge Edith Jones, the Reagan-appointed conservative leader of that court, who was almost appointed to the U.S. Supreme Court in 1990.
“With all due respect to the district court, its efforts to streamline this case resulted in a premature disposition,” Judge Jones wrote for the unanimous court in 2009. The appellate court held that court rules permitted the claimant to amend his original answer at that beginning stage of litigation, and faulted Ozerden for not allowing it.
Other reversals are often based on grounds that alarm judicial analysts. His critics note that his legal analysis is typically very short, and fails to cite key Fifth Circuit precedents which he is required to follow as a trial judge. Even more concerning is that the overwhelming majority of these reversals are from unanimous three-judge panels, in which most of the judges are Republicans.
Ozerden has written 1,100 orders and opinions over the past decade, but they do not demonstrate any focus on advancing the original meaning of the Constitution, stringently adhering to the text of federal law, or taking the time to develop the law with full-length, persuasive opinions that advance the rule of law. While such lack of leadership and commitment to conservative principles does not cause much harm in the federal trial courts, it would be a significant lost opportunity to put such a judge on the federal appeals court.
Less than one percent of federal appellate decisions go to the Supreme Court. Over 99 percent of the time, the decision of a federal appeals court is the final word on a case. President Trump has publicly committed to filling those appellate seats with judges in the mold of Justice Scalia, and has achieved historic success thus far in delivering on that promise.
While Ozerden’s critics add that he does not appear to be a closeted liberal or judicial activist, they contend that there is no reason to believe he would be a solid conservative judge who will be a credit to President Trump. Instead, they fear he could instead ruin a historic opportunity to make the Fifth Circuit the most reliable court in the nation on a host of issues central to the president’s MAGA agenda, including immigration, law enforcement, cutting regulations, the Second Amendment, religious liberty, and “draining the Swamp.”
The president’s advisers might in other situations think they occasionally need to cut a deal when dealing with far-left senators in blue parts of the country. Although some conservatives might still object, many others could give a one-time pass on a judicial seat from a deep-blue state like Hawaii, especially if it is part of a deal to secure the confirmation of other judicial picks who are top priorities.
But there are no blue states in the Fifth Circuit, so there is no need to make a deal. This Fifth Circuit seat was held by Judge Grady Jolly from Mississippi. There are plenty of rock-ribbed conservatives – committed members of the Federalist Society who are active in restoring the original meaning of the Constitution – to choose from in Mississippi, a state with two Republican senators who should be expected to follow the president’s lead as the head of their party, and to support the president’s clear promise to the American people as to what sort of judges he would appoint to the bench.
A final consideration key to advancing President Trump’s agenda is what this final open seat means for en banc rehearings. Federal appeals are heard by three-judge panels chosen at random. But on rare occasions the court as a whole can decide to rehear a case en banc, meaning that all the active-service judges on the court rehear the case together. It happens several times each year in most appellate courts.
People tend to think of the Fifth Circuit as reliably conservative because most of its appointees are Republicans, but plenty of Republicans are not conservatives.
Legal experts readily point out that there are three rock-solid conservatives currently on the Fifth Circuit aside from the Trump picks: Judges Edith Jones, Jerry Smith, and Priscilla Owen. (“Senior judges” are semi-retired and generally cannot participate in en banc rehearings.) If all of President Trump’s five appointees prove to be as conservative as they currently appear, that means a total of eight solid votes. There are 17 seats on the Fifth Circuit.
If that ninth seat is a reliable conservative, then the president could have a reliable majority to uphold his conservative agenda, because he could expect a minimum of a 9-8 win before the full en banc court.
Judges rival the president’s tax-cut and deregulatory economic agenda as his most potent issue going into the 2018 midterm elections. Polls show that the Supreme Court was the top issue for 21 percent of voters in 2016, and those voters went for President Trump by a margin of 57 to 41 – a massive 16-point margin.
President Trump has not yet made a final selection to fill the open seat on the Fifth Circuit.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.