Fifth Circuit Nominee Says Past Advocacy Won’t Follow Him to Bench

WASHINGTON (CN) – President Donald Trump’s selection to the Fifth Circuit on Wednesday assured senators that his past work advocating for conservative causes in court will not follow him to the bench, telling them the role of a judge and the role of a lawyer are different.

“Those are fundamentally very, very different jobs,” Andrew Oldham told the Senate Judiciary committee Wednesday.  “The role of an advocate is to zealously advocate for a client’s position, to serve a client’s interests even when they’re different from the advocate’s. The role of a jurist is fundamentally different.”

Oldham currently serves as general counsel to Texas Gov. Gregg Abbott, having previously worked as the deputy solicitor general in the state attorney general’s office. A member of the conservative Federalist Society, Oldham worked from 2009 to 2012 at the Washington firm Kellogg Hansen Todd Figel & Frederick.

Though Oldham is just 39, his time as a government lawyer has put him before courts in multiple high-profile and controversial cases, including his work leading Texas’ challenge to the Obama administration executive order extending protections from deportation to people in the country illegally who had children who were citizens or legal permanent residents.

Oldham was the lead lawyer in Texas’ challenge to the so-called DAPA program, which a federal court enjoined and never went into effect, but he told Sen. Dick Durbin, D-Ill., he left the issue behind after leaving the attorney general’s office. As a result, Oldham said he was not involved in Texas’ threat of additional legal action if the Trump administration did not withdraw the DACA program, which gave protections to people in the country illegally who had come to the United States as children.

Sen. Sheldon Whitehouse, D-R.I., also pressed Oldham on a statement he made at the University of Chicago in 2016  in which he questioned the administrative state’s legitimacy and called it “enraging.”

Oldham insisted he made the comments as part of his work representing Abbott’s legal priorities, but Whitehouse said the way he phrased the statements made it seem as though the views were his own. Whitehouse said the statement could give any government lawyer advocating for a federal agency concerns if their case came before Oldham.

“Do you think it’s reasonable for us to have some concerns about whether you can make a complete firewall, once you put that robe on, between something that personally enrages you, that you consider to be illegitimate, and yet treat that enraging, illegitimate entity fairly in your courtroom?” Whitehouse asked. “Don’t you think there’s at least a reasonable question that is worth pursuing as to that?”

Oldham has also faced opposition from liberal groups and Democrats over his work on behalf of Texas challenging Obama-era environmental regulations, as well as for a friend of the court brief he filed on behalf of Texas in the Supreme Court case that struck down a portion of the Voting Rights Act.

Like most judicial nominees, Oldham declined to weigh in on specific Supreme Court decisions, or offer his opinion on questions that touched on subjects that he would be likely to see before him in court.

As he has done with previous nominees, Sen. Richard Blumenthal, D-Conn., asked Oldham if he believed the Supreme Court correctly decided the landmark case Brown v. Board of Education, but Oldham said the rules governing judicial nominees’ behavior during nominations hearings prevented him from answering.

He said  while Brown “corrected an egregious error” in overturning Plessey v. Ferguson, he could not say whether it was rightly decided because he should not publicly prejudge any decisions by which he will be bound on a federal appeals court.

The committee also heard testimony from Michael Truncale, who is up for a seat on the U.S. District Court for the Eastern District of Texas and has similarly drawn opposition from liberal groups and Democrats concerned about his political past.

Truncale ran for Congress in Texas in 2012 and faced a question during Wednesday’s hearing about comments he made saying former Texas State Sen. Wendy Davis, a Democrat, “wants to kill babies five months into term.”

Truncale did not back off the comments, saying Davis’ position on abortion policy went “beyond Roe v. Wade.” Still, he insisted he would not carry the views he advocated during his run for office with him onto the bench.

“Those are statements that were made when I was involved with the policy making branch of government,” Truncale said. “As a nominee for the judicial position I am seeking a position in the non-policy making area of government. So I think that is an important distinguishment because any personal or political views that may have been stated have no applicability and will not enter into any decision that I made.”

Truncale testified alongside U.S. District Court for the Western District of Texas nominee Alan Albright, U.S. District Court for the Northern District of West Virginia nominee Thomas Kleeh and U.S. District Court for the Western District of Pennsylvania nominee Peter Phipps, each of whom received fewer questions.

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