Senate Panel Approves Engelhardt for 5th Circuit, Three Others

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved four of president Donald Trump’s judicial nominees, including a Louisiana federal judge up for a spot on the Fifth Circuit.

U.S. District Judge Kurt Engelhardt, who has served in the Eastern District of Louisiana since 2001 and is nominated to a seat on the Fifth Circuit, earned modest bipartisan support from the Judiciary Committee, despite some senators’ concerns about rulings he handed down in favor of employers in sexual harassment and discrimination cases.

In one such case, Engelhardt ruled against a woman who sued her company for pregnancy discrimination after it fired her two weeks after she gave birth.

The company said it fired the woman because she was not qualified for the job because she wasn’t able to come to work. The woman pointed out she was under doctor’s orders to remain on bed rest, but Engelhardt granted summary judgment to the employer, writing “the fact that plaintiff’s absences were caused by pregnancy does not dispense with the general requirement that employees must show up for work.”

Engelhardt told senators during his confirmation hearing that he did not recall the specifics of the case, but said in written responses to questions submitted after the hearing that he applied binding 5th Circuit precedent in reaching his decision.

“A district judge’s mandate is to judge each case based on the evidence presented and in accordance with controlling legal principles established by Congress and judicial precedent including controlling precedent of the Supreme Court and the applicable circuit court,” Engelhardt wrote when asked about the case.

Senators also raised questions about his 2011 decision ruling in favor of Catholic Charities Archdiocese of New Orleans in a sexual harassment case brought by a woman who claimed she faced “sensual back rubs” and comments about her appearance at work. Though Engelhardt ruled in favor of the company because the woman did not exhaust the administrative remedies available to her, his opinion nevertheless delved into the merits of her claims.

Engelhardt explained in written responses to questions submitted after his hearing that he did this because he anticipated the Fifth Circuit reviewing the ruling.

Before taking the bench, Engelhardt spent nearly a decade at the Metairie, La., firm Hailey, McNamara, Hall, Larmann & Papale. A Louisiana State University grad, Engelhardt has been a member of the conservative Federalist Society since 2002.

California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said she has concerns about Engelhardt’s record in employment discrimination and sexual harassment cases, but ultimately decided he appears qualified for a spot on a federal appeals court.

“My conclusion is that the 16 years he has served as a federal district court judge is important and while he may be conservative, I do not believe he is outside the mainstream,” Feinstein said.

The most controversial nominee the committee considered was Howard Nielson, an attorney at the Washington D.C. firm Cooper & Kirk who is up for a seat on the U.S. District Court for the District of Utah.

Nielson is one of several Trump nominees who spent time in the Bush Justice Department, having served in various roles at the department from 2001 to 2005.

His two years at the Office of Legal Counsel drew the most scrutiny from the Judiciary Committee members, who tried to pin down if he worked on memos the department issued related to the use of torture during the War on Terror.

Nielson said he was part of the team that reviewed two of the most infamous memos the Justice Department issued justifying the government’s use of torture, but would not explain exactly what work he performed on the memos, citing attorney-client privilege.

Nielson was similarly unable to discuss other memos on torture issued while he was at the Office of Legal Counsel, frustrating senators.

Lawmakers also pressed Nielson on his time in private practice, specifically on his work defending California’s Proposition 8, a ballot measure that sought to define marriage as between a man and a woman.

After U.S. District Judge Vaughn Walker found Proposition 8 violated the 14th Amendment’s due process and equal protection clauses, Nielson filed a motion seeking to vacate Walker’s opinion because Walker did not disclose that he was gay.

Senators said Nielson’s motion harkens back to old arguments suggesting black or female judges could not be impartial.

“The idea that someone cannot be impartial simply because of their sexual orientation should be antithetical to our federal judiciary,” Feinstein said.

Sen. Mike Lee, a Utah Republican who said he has known Nielson for more than 20 years, defended the attorney, saying Neilson worked on the motion based on the wishes of his client. Lee said holding that against Nielson would discourage lawyers from taking on difficult cases for unsavory clients and set a standard that would hurt the judiciary.

“I am 100 percent sure that we, right here, right now, will do irreparable damage to the practice of law, to the legal profession, if a lawyer’s ethical obligation to zealously represent his client is somehow going to serve as an impediment to his own career advancement,” Lee said.

Nielson, who is a member of the Federalist Society, cleared the Judiciary Committee in an 11-10 vote.

The road was smoother for Barry Ashe and James Sweeney, who are up for seats on the U.S. District Court for the Eastern District of Louisiana and the U.S. District Court for the Southern District of Indiana, respectively.

Ashe, a member of the Federalist Society who has been an attorney with the New Orleans firm Stone Pigman Walther Wittmann since 1985, faced few questions at his nomination hearing last month and skated through the committee on a 20-1 vote.

The few written questions senators posed to Ashe after his hearing sought more information on his work representing a school board in a challenge to a disclaimer that required teachers to mention to students that teaching evolution was “not intended to influence or dissuade the biblical version of creation or any other concept.”

Ashe gave an interview during the case saying evolution “isn’t proven fact” and that schools should allow students to provide different perspectives. While Democrats on the committee pressed Ashe on the statement, he said the interview represented his client’s position and that professional conduct rules for attorneys prevented him from offering his personal views.

Sweeney, who has worked as an attorney at the Indianapolis firm Barnes & Thornburg since 1999, went through the committee on a unanimous voice vote. Sweeney was a Marine Corps officer from 1983 to 1992, after which time he entered the Marine Corps reserves.

A recipient of the Legion of Merit, Sweeney graduated from the United States Naval Academy in 1983 and attended Notre Dame Law School after leaving active duty.

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