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Trump Fifth Circuit Nominee Faces Rare GOP Pushback

A Mississippi federal judge up for a seat on the Fifth Circuit faced tough questions from Republicans on Wednesday, as GOP senators and conservative legal advocacy groups have expressed rare skepticism about one of President Donald Trump's nominees to a federal appellate court.

WASHINGTON (CN) - A Mississippi federal judge up for a seat on the Fifth Circuit faced tough questions from Republicans on Wednesday, as GOP senators and conservative legal advocacy groups have expressed rare skepticism about one of President Donald Trump's nominees to a federal appellate court.

"For a lifetime appointment on the court of appeals, what I think we should be looking for is a demonstrated record as a constitutionalist," Senator Ted Cruz, R-Texas, told U.S. District Judge Sul Ozerden on Wednesday. "As I look at your judicial record, and I've asked you to point me to any cases, to any indicia to the contrary, I don't see any concrete indicia of that."

Ozerden, who has served on the U.S. District Court for the Southern District of Mississippi since 2007, faces somewhat unusual resistance from Republicans in the Senate and conservative legal advocacy groups that have questioned his conservative credentials.

Carrie Severino, the head of the influential Judicial Crisis Network, in August wrote in National Review that "it sure seems like we could do better" than Ozerden on the Fifth Circuit.

After Trump picked Ozerden in June, Republicans in the Senate expressed skepticism about the choice. Senator John Kennedy of Louisiana said he had "a lot of questions" about Ozerden, specifically looking for explanations for the frequency with which Ozerden's opinions were overturned in the Fifth Circuit.

At the confirmation hearing Wednesday in the Senate Judiciary Committee, Ozerden said claims that he has a 25% reversal rate at the Fifth Circuit are simply not true and that his actual rate is closer to 4%, offering up data to back up his claim. The Justice Department did not immediately return a request to provide the data Ozerden referenced.

Some in the Mississippi legal community have speculated that Ozerden faces opposition not because of his judicial philosophy or record, but because people in Texas see an opportunity to defeat him and snag a Mississippi seat on the Fifth Circuit for the Lone Star State. Typically, certain seats on the federal appeals courts are reserved for nominees from certain states, but it is no more than a tradition and is not written into law.

Kelly Shackelford, president and CEO of the First Liberty Institute, wrote in August 2018, when Ozerden's name first came up as a potential choice for the seat, that "Texas will happily recommend" someone else if lawmakers and the White House could not agree on a Mississippi nominee with a more conservative record than Ozerden's.

Cruz was Ozerden's most forceful questioner at Wednesday's hearing, expressing skepticism that Ozerden will fulfill Trump's promise to nominate judges in the mold of the late conservative legal icon Justice Antonin Scalia.

Ozerden defended his record, saying the original public meaning of a text guides his work on a case and that he sees himself in Scalia's line.

"I think if you look at my record on the whole, you will see that I am committed to principles of textualism, following the law, following the constitution," Ozerden told Cruz.

Ozerden specifically faced questions about his decision to dismiss a Mississippi Catholic diocese's challenge to the Obamacare contraceptive mandate. Ozerden denied the diocese's request for oral argument and dismissed the case, saying it was not ready for review because the administration was in the process of changing the regulation.

Conservatives have said the ruling raises questions about Ozerden's views towards religious liberty, but the judge insisted his "hands were tied" by Fifth Circuit precedent in the case.

"The notion that I'm somehow hostile to religious liberty is simply not accurate and it's belied by my record," Ozerden said.

The son of a Turkish immigrant, Ozerden worked as a partner at the Gulfport, Miss., firm Dukes, Dukes, Keating & Faneca before taking the federal bench. He also served in the U.S. Navy, and earned a Navy Commendation Medal for missions he flew over Iraq and Somalia.

Ozerden now awaits a vote in the Senate Judiciary Committee and later a confirmation vote before the full Senate.

The Senate Judiciary Committee also heard Wednesday from three nominees to lower courts, including two to federal district courts in Utah and Illinois. U.S. District Court for the Northern District of Illinois nominee John Kness currently works as general counsel at the College of DuPage, having spent 2009 to 2016 as a federal prosecutor in Chicago.

David Barlow, up for a seat on the U.S. District Court for the District of Utah, currently works as a partner at the Salt Lake City firm Dorsey & Whitney, having served from 2011 to 2014 as the U.S. Attorney for the District of Utah. He also worked as vice president of compliance at Walmart, as a partner at Sidley Austin and as general counsel to Senator Mike Lee, R-Utah.

The final judicial nominee the committee heard from Wednesday was Eleni Roumel, who works as deputy counsel to Vice President Mike Pence. Roumel is nominated to a seat on the U.S. Court of Federal Claims and worked from 2012 to 2018 as assistant general counsel in the House of Representatives Office of General Counsel.

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