News and Commentary

HAMMER: Sul Ozerden Is A Very Weak Fifth Circuit Pick. Kill The Nomination.

The New Orleans-based U.S. Court of Appeals for the Fifth Circuit, on which I completed a judicial clerkship six months ago, is one of the most important federal courts in the country. The Fifth Circuit covers Texas, Louisiana, and Mississippi, and the inclusion of the nation’s largest border state under the Court’s jurisdiction necessarily means that its appellate docket is rife with high-profile immigration, criminal, and drug trafficking cases. Moreover, Texas has long been the preferred venue of choice for meaningful conservative impact litigation — including but hardly limited to litigation commenced by Texas’s renowned Office of the Solicitor General. Texas’s current lawsuit against Obamacare is a perfect example.

Texas, Louisiana, and Mississippi all have one strikingly obvious feature in common: They are deeply red states. Each state has two Republican senators, and three of the six — Sens. Ted Cruz (R-TX), John Cornyn (R-TX), and John Kennedy (R-LA) — even serve on the powerful U.S. Senate Judiciary Committee.

Because it bears repeating: We are talking here about Texas, Louisiana, and Mississippi. These are not Rust Belt swing states. This is, for all intents and purposes, the contemporary geographical heartland of American conservatism.

Due to all of these reasons, the Trump administration’s (generally) well-oiled judicial nominations machine has placed an outsized emphasis on stacking the Fifth Circuit with deeply principled jurists. The results thus far, which include three Texas-based judges and two Louisiana-based judges, speak for themselves. As I can personally attest from a very recent year of clerking on the Court, Trump nominees on the Fifth Circuit have made a huge difference in terms of three-judge panels and Court-wide en banc votes alike. The Fifth Circuit is truly, as the president might say, being made great again.

But the Court is not yet truly great. There are still far too many close en banc votes of great importance on the Fifth Circuit.

Which brings us to Halil Suleyman (“Sul”) Ozerden, the president’s recently announced pick to fill a vacant Mississippi-based Fifth Circuit seat.

It is first important to contextualize the background of the nomination. Unlike the Trump administration’s five previous Fifth Circuit judicial nominees, the Ozerden pick is not a product of the tag-teaming duo of the White House Counsel’s Office and the outside Federalist Society. On the contrary, reliable sources inform me that it was due in no small part to objections from these quarters that the Mississippi-based Fifth Circuit seat languished in vacancy for nearly two years. And as Politico notes, Acting White House Chief of Staff Mick Mulvaney was a groomsman at Ozerden’s 2003 wedding. Ozerden is said to also be strongly supported by Sen. Roger Wicker (R-MS) — he of a 65% lifetime scorecard rating from Heritage Action for America.

Readers can surely draw their own conclusions. But again, this is not for a seat in a swing state in a left-leaning appellate court — this is for a Fifth Circuit seat in Mississippi.

Ozerden’s name was first publicly floated last August — to disastrous effect, in conservative legal circles. The influential Carrie Severino of Judicial Crisis Network, citing Ozerden’s 25% reversal rate on appeal at the conservative-leaning Fifth Circuit, raised questions of “mere judicial competence.” According to Severino, Ozerden, who was nominated to a Mississippi-based district court seat by President George W. Bush, “has not demonstrated a commitment to textualist methods of statutory interpretation” since joining the bench. My own surveying of Ozerden’s record leads me to a similar conclusion: Judge Ozerden is often terse in his analysis and his statutory interpretation is frequently heavier on judicial precedent than it is on the actual statutory text itself. “It sure seems like we could do better than Judge Ozerden” in Mississippi, Severino concluded. Indeed.

Even more pointedly, Kelly Shackelford, the president and CEO of First Liberty Institute — where I serve in an Of Counsel capacity — described Ozerden at the Daily Caller last August as someone who “would be a pick against those who voted for the president”:

[J]ust when President Trump has an opportunity to solidify a conservative majority on the Fifth Circuit … establishment Republicans are pressuring the president to nominate one of their own. …

There’s one more open seat on the Fifth Circuit. With a solid judge, it would become the first reliably conservative appeals court in the nation. Why would President Trump waste an opportunity on a judicial seat to uphold his promise to nominate constitutional conservatives by nominating an establishment moderate like Ozerden? I pray he does not.

After Ozerden’s formal nomination this month, the conservative criticism of his record has continued unabated. Erick Erickson of The Resurgent has already called for the defeat of Ozerden’s nomination. And according to Politico, Severino — whose beliefs here may reasonably be imputed to that of the broader Federalist Society upper echelon — is not wavering from her prior criticism.

Again, this is Mississippi. There is zero excuse not to nominate a veritable right-winger for this seat.

There is one case in particular in Ozerden’s that bespeaks not merely his slipshod judging, but also a seeming hostility to the all-important issue of religious liberty. In the 2012 Southern District of Mississippi case of Catholic Diocese of Biloxi v. Sebelius, a case where the eponymous diocese challenged the intrusive and conscience rights-undermining Obamacare contraceptive mandate promulgated by President Barack Obama’s Department of Health and Human Services, Judge Ozerden dismissed the diocese’s appeal with curt and reckless abandon. The diocese, like many religious organizations across the country, had argued that the contraceptive mandate required it to provide health plans to its employees in a way that violated its sincerely held religious beliefs. But Judge Ozerden, in all his infinite wisdom, went so far as to even deny the diocese’s motion for oral argument! Instead, as Shackelford wrote, Ozerden felt comfortable “entrust[ing] the diocese’s religious liberty to the fleeting benevolence of the same government agencies responsible for endangering that liberty in the first place.”

It is one thing to deny a motion for oral argument from a pro se prisoner filing a facially frivolous habeas corpus petition; it is quite another to deny a motion for oral argument to a Catholic diocese pleading a real, genuine infringement of its right to conscience.

To make matters worse, Ozerden’s ruling was also manifestly against both (1) a persuasive district court opinion only sixteen days prior out of the Eastern District of New York (Roman Catholic Archdiocese of N.Y. v. Sebelius), which reached the opposite conclusion and (2) an amicus brief filed on behalf of the Catholic Diocese of Biloxi by 79 sitting members of the U.S. House of Representatives.

What Judge Ozerden did in Catholic Diocese of Biloxi represents nothing less than a deliberate indifference — indeed, perhaps an outright hostility — to the interests of religious liberty. And religious liberty, of course, is easily one of the most indispensable issues by which senators ought to vet and assess judicial nominees. Just ask Sen. Josh Hawley (R-MO), who is making quite a name for himself on the issue.

Why would a Fifth Circuit judge be more dismissive of religious liberty than a judge in liberal New York? Again, this is Mississippi.

Here is how Hiram Sasser, general counsel for First Liberty Institute, put it in an exclusive statement to The Daily Wire:

President Trump has hit five home runs at the Fifth Circuit so far. Judge Ozerden ignored 79 members of Congress, ignored a prior decision in favor of religious liberty on the same issue, and ruled against the Catholic Church without even allowing the Church to have a hearing and its day in court. We cannot let anyone derail President Trump’s perfect record at the Fifth Circuit and at the last minute cede the swing vote to someone who demonstrates a lack of regard for religious liberty.

Sasser’s swing vote point is crucial. As a very recent Fifth Circuit law clerk, I can attest that the Court’s en banc votes — in which important cases are brought before all active judges — are oftentimes nail-biting affairs. The Fifth Circuit is being made great again, but it is not quite fully there yet. Again, I would know. And this Mississippi seat promises to be the proverbial Anthony Kennedy seat on the Court — the swing vote in en banc voting who will decide crucially important matters of intense interest to conservatives.

We should have zero question marks from the nominee for this Mississippi seat. A close source tells me that Sen. Wicker has strongly intimated to Mississippi Supreme Court Justice Josiah Coleman that he would be the nominee if Ozerden’s nomination were to go down. That would be the same Justice Coleman who took a staggeringly awesome stand against the tyranny of judicial supremacy in a 2015 dissent pertaining to a same-sex divorce case. As reported by the Hattiesburg American at the time:

Coleman wrote that the idea that the U.S. Constitution means what a majority of the Supreme Court says it means “is not necessarily true and should be subject to questioning.”

“No court should be elevated above the Constitution itself, and if the Supreme Court of the United States has done something it has no constitutional basis for doing — as forcefully argued by the Obergefell [v. Hodges] dissenters, then those of us who sit below it must ask ourselves what, if anything, it means.”

That is exactly right. As constitutional law scholar Michael Stokes Paulsen phrased it at National Review last year: “[T]he Constitution specifies that ‘this Constitution’ — the written text — is binding on judges and all other government officials. Right after designating the Constitution supreme law, Article VI provides that ‘the Judges in every State shall be bound thereby.’ It further specifies that all federal and state officers, of every branch, ‘shall be bound by Oath or Affirmation, to support this Constitution.’ All who exercise authority under the Constitution’s auspices swear an oath of fidelity to abide by the supremacy and binding nature of the Constitution’s text.”

Again, conservatives can do much better than Sul Ozerden for this Fifth Circuit swing vote seat. This is Mississippi.

Conservative warriors for religious liberty on the U.S. Senate Judiciary Committee should come out swinging against the Ozerden nomination. Josh Hawley — who has been tremendously courageous and defiant in his Committee tenure thus far — may well be battle-fatigued, but this is yet another important battle. Hawley should summon the will to oppose this nomination.

So should Ted Cruz — indeed, Cruz should lead this battle. The Fifth Circuit docket is dominated by Texas litigation — this is Cruz’s turf. And the outright opposition to the nomination by Texas-based First Liberty Institute should provide Cruz with all the support and political cover he needs to do the right thing here. With Cruz’s leadership, it is hard to see how at least Hawley does not follow — and from there, the nomination is likely doomed.

The time is now for conservatives to come out and oppose this weak and uninspired pick for the swing seat on one of the nation’s most important federal appellate courts. This is an important fight. The White House has made its pick — there is no retreating.

As conservatives, we can do so much better than Sul Ozerden. Again, this is Mississippi.

The Daily Wire   >  Read   >  HAMMER: Sul Ozerden Is A Very Weak Fifth Circuit Pick. Kill The Nomination.