Monday, November 28, 2022 | Back issues
Courthouse News Service Courthouse News Service

Senate Panel Advances Fifth Circuit Nominee, Five Others

The Senate Judiciary Committee on Thursday advanced six of President Donald Trump's judicial nominations, including one to the Fifth Circuit who faced opposition from Democrats and liberal groups over his work advocating conservative legal causes in court.

WASHINGTON (CN) - The Senate Judiciary Committee on Thursday advanced six of President Donald Trump's judicial nominations, including one to the Fifth Circuit who faced opposition from Democrats and liberal groups over his work advocating conservative legal causes in court.

The committee began consideration of the nominees last week, but lengthy speeches from lawmakers in opposition and support of some of the nominees ran the meeting into scheduled votes and forced the committee to delay its work for a week. Seeking a shorter meeting this week, most senators did not make comments before voting on the nominees Thursday.

Andrew Oldham, who serves as general counsel to Texas Gov. Greg Abbott, has spent much of his relatively short legal career as a government attorney and has faced questions from Democrats and liberal groups about his involvement in several high-profile challenges to Obama-era policies.

Oldham, who previously worked as Texas' deputy solicitor general, was the lead lawyer on the state's challenge to the Obama executive action extending protections from deportation to people in the country illegally who had children who were citizens or legal permanent residents. A federal court enjoined the so-called DAPA program, which never went into effect.

A member of the conservative Federalist Society, Oldham also worked on a challenge to Obama-era environmental regulations and on a friend of the court brief on behalf of Texas in the Supreme Court case that struck down a portion of the Voting Rights Act.

In response to questions submitted in writing after his nomination hearing, Oldham nodded to the concerns of voter identification law opponents, but said he could not comment further because such laws are the subject of ongoing litigation.

"Any law that regulates how voters vote can impose burdens," Oldham wrote in response to questions submitted in writing after his nomination hearing. "The question in each case is whether those regulations are lawful."

During the meeting last week, Democrats cited Oldham's limited experience and history of advocating in court on hot-button issues as reasons to oppose his nomination.

Sen. Sheldon Whitehouse, D-R.I., also objected to comments Oldham made at the University of Chicago in 2016, in which he questioned the legitimacy of the administrative state.

Oldham told Whitehouse during his nomination hearing that he made the comments on behalf of Abbott and that they did not necessarily represent his personal views. Whitehouse was unconvinced, saying Oldham calling the administrative state "enraging" would suggest otherwise.

"It's really hard for me to see how you can be personally enraged by the existence of the Environmental Protection Agency because you believe it is illegitimate and then walk back from that personal rage and sit up there on a bench and say don't worry EPA, I'm going to treat you fairly," Whitehouse said at the Judiciary Committee's meeting last week.

Oldham assured senators he would abandon his previous advocacy if the Senate gave him the chance to trade his seat at the counsel's table for a black robe and chair on the other side of the bench.

"All judges have personal beliefs and all former litigators have a record of previous advocacy positions," Oldham wrote to senators. "It is nonetheless incumbent on every judge to put aside his or her personal beliefs and previous clients and instead to apply the law fairly and faithfully, without regard to persons, prejudice or politics. If confirmed, I would do so in every case and every day."


Sen. Ted Cruz, R- Texas, defended Oldham from Democrats' criticisms on his record, saying Oldham was simply doing his job as a government lawyer charged with defending positions beneficial to Texas or supporting its legislature's laws.

"None of the criticism that we've heard today directed at Andy Oldham is based on his qualifications," Cruz said last week. "The criticisms are all based on one thing: that he represented the state of Texas. That he represented the state of Texas in litigating positions."

Oldham cleared the committee on an 11-10 party-line vote on Thursday morning.

The committee also narrowly advanced the nomination of Wendy Vitter, who currently works as general counsel to the Archdiocese of New Orleans. Vitter faced questions about past comments she made regarding abortion rights and her failure to disclose some public appearances to the committee.

When moderating a panel in 2013, Vitter encouraged women to ask their doctors about the work of Dr. Angela Lanfranchi, an anti-abortion doctor who has claimed birth control pills cause cancer and make women more likely to be victims of assault and murder.

Though Vitter told senators she was simply encouraging women to get more information from their doctors, Sen. Mazie Hirono, D-Hawaii, said the video of the panel suggests otherwise.

"It is impossible to watch this video and believe her testimony that she did not call these wild, debunked claims facts or to believe that she was merely urging conversation for the audience with their own doctors" Hirono said last week.

Senators also posed questions about comments Vitter made at a 2013 rally opposing the construction of a Planned Parenthood clinic in Louisiana in which the former prosecutor said the organization kills more than 150,000 females per year.

Vitter explained to Hirono that she was referring to the number of female fetuses aborted each year when she made the comments.

Vitter also did not tell the committee about several appearances she made in support of her husband, former Republican Sen. David Vitter, but assured lawmakers she was not attempting to hide her pro-life views, which she noted are out in the open for anyone to see.

"Senator, out of respect for this committee, although I would normally say that my religious and personal views don't have any bearing on this role, out of respect, I am pro-life, I'm going to say that," Vitter said at her nomination hearing. "I will also look you or anyone else in the eye and say that those views I take seriously to set aside."

The committee approved Vitter in an 11-10 party-line vote.

Both Vitter and Oldham also faced questions about their refusal to answer whether the Supreme Court correctly decided Brown v. Board of Education, the landmark decision that held racial segregation in public schools violates the Constitution.

Sen. Richard Blumenthal, D-Conn., asked both Vitter and Oldham during their nomination hearing whether the decision was correct. Both declined to answer, though in slightly different ways.

Oldham said Brown "corrected an egregious error," in Plessy v. Ferguson, but that he could not comment on decisions by which he would be bound on the federal appellate court. Vitter said with she did not want to go down a "slippery slope" by saying which cases the Supreme Court correctly decided.


Sen. John Kennedy, R-La., noted he has also asked nominees whether they support racial segregation, and all have said they do not.

Rule 2.10 of the ABA's Model Code of Judicial Conduct prohibits judges from making public statements "that might reasonably expected to affect the outcome or impair the fairness of a matter pending or impending in any court," or make commitments regarding cases that are likely to come before them.

Both Vitter and Oldham cited the rules as a reason they could not answer the question, but Democrats have said Brown is a legal pillar that nominees should be able to answer without concern for spoiling their independence.

"I think that we have a bigger and higher duty here,"  Blumenthal said last week. "It's the last time any of these nominees are going to be accountable to anyone. They are, like all our federal judges, an anomaly in a democratic system. We appoint them for life and then they're virtually  unaccountable and we have a higher responsibility here."

But Republicans called the questions about specific cases a trick meant to make the nominees look bad, even though there is no debate about the legitimacy of Brown. Cruz last week said nominees need to tread lightly in hearings because if they give their opinion on Brown, then Democrats will have an opening to probe them on their stances on cases that are still the subject of lively legal debate.  

"There is a reason  that nominees are not answering the question do you believe Brown v. Board was rightly decided," Cruz said last week. "And the reason is that it leads inevitably to the slippery slope of the next decision and the next decision and the next decision. What this discussion is about, what the high dungeon is about is not Brown. But what this discussion is about is Roe v. Wade, what this discussion is about is the Obergefell decision, what this discussion is about is Citizens United, what this discussion is about is the Heller decision."

Kennedy, who has expressed frustration at confirmation hearings about nominees not answering his questions, split the difference between most Republicans and Democrats on the committee. He said while questions about specific cases should be out of bounds, nominees should not be able to hide behind a code of ethics to answer more fundamental questions about their legal views.

"I meant what I said earlier, that I think the canons of judicial ethics prohibits us, as it should, and prohibits nominees from talking about or asking a question about how a nominee would vote in a particular case," Kennedy said last week. "I think that is wrong and it violates the canon of ethics. But I do worry sometimes, Mr. Chairman, that our nominees are so well coached and for whatever reason are so timid that they won't discuss the law. And I'm not going to vote for nominees anymore that won't answer my questions."

The committee similarly argued over the nomination of Michael Truncale, who is up for a seat on the U.S. District Court for the Eastern District of Texas, with Democrats objecting to comments he made as a candidate for Congress in 2012.

Truncale made comments during the campaign critical of former Texas State Sen. Wendy Davis, a Democrat, who Truncale said "wants to kill babies five months into term." Democrats also objected to Truncale calling then-President Barack Obama an "un-American imposter."

At his nomination hearing, Truncale told senators the comments he made were in his capacity as a candidate for public office, a role distinctly different than that of a judicial nominee.

"Those are statements that were made when I was involved with the policy making branch of government," Truncale said at his nomination hearing in April. "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 has worked at the Beaumont, Texas firm Orgain, Bell & Tucker for his entire career, starting as an associate in 1985 and rising to the level of partner in 1991. Truncale received narrow approval from the committee by an 11-10 vote.

The three other nominees the committee approved on Thursday were comparatively noncontroversial, with U.S. District Court for the Western District of Texas nominee Alan Albright and U.S. District Court for the Western District of Pennsylvania nominee Peter Phipps receiving unanimous support.

U.S. District Court for the Northern District of West Virginia nominee Thomas Kleeh received modest  bipartisan support with a 14-7 vote Thursday.

All nominees will still need to receive a vote before the full Senate before being able to take their seats on the courts to which they are nominated.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.