After decades singing the same song about wanting strict constructionist judges who will follow the law and not make it, in the mold of Justice Scalia and Justice Thomas, the GOP took a sharp right turn with a memorable exchange this month when Senator Ted Cruz questioned District Court Judge Halil Suleyman Ozerden, nominated to the Court of Appeals for the Fifth Circuit.
The senator spoke what until now had remained the unspoken subtext of Republican questioning of judicial nominations:
“A number of conservative groups have raised concerns about your record,” said Cruz. “The First Liberty Institute has said that nominating you to the Fifth Circuit is, quote, the ‘wrong pick for five reasons. He’s not a conservative. He’s never been affiliated with the conservative movement. He’s never volunteered his time to advance conservative causes. He’s never been active in conservative legal circles. And he’s never written any decisions that have advanced conservative principles.’ Is their assessment wrong?”
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The time-honored answer to that question would be to say that the role of a judge is not to advance conservative causes, or liberal ones, but to apply facts to the law. Nominated by George W. Bush, Ozerden has been a District Court judge in Mississippi for the last 12 years. He tried to put the genie back in the bottle, pointing out that “in public service, there are certainly limitations on the types of things that you can do.”
Cruz: “How about before you were a judge?”
If the 52-year-old Ozerden wanted Cruz’s vote and a promotion to the Court of Appeals, he had to demonstrate his conservative bona fides. He said he did participate in “supporting different candidates in different campaigns” when he was a board member of the Harrison County Republican Club from 2005 to 2007. On the questionnaire he submitted to the Senate Judiciary Committee, he listed nine campaigns where he “assisted with fundraising” for various Mississippi politicians, from former Governor Haley Barbour to former Senate majority leader Trent Lott.
Whether that level of activism will satisfy Cruz and other conservative stalwarts on the Judiciary Committee is uncertain. Whatever Ozerden’s fate, an important line has been crossed before he tried to put the genie back in the bottle by concluding even he nodded to the answer Cruz was openly asking for by referring to his political activities before then and concluding: ”I think if you look at my record on the whole, I think you will see I am committed to principles of textualism and following the law and following the Constitution.”
But Cruz has said the quiet part out loud: All that rhetoric about strict constructionists is a bunch of hooey.
“What they’re looking for are results-oriented judges,” says Daniel Goldberg, legal director with the liberal advocacy group, Alliance for Justice.
“Ted Cruz pulled away the curtain by asking a judicial nominee point blank what he did to advance the conservative cause,” said Goldberg, calling that “a new litmus test.”
Ozerden has stellar GOP connections. He was a groomsman in acting White House Chief of Staff Mike Mulvaney’s wedding, and he has the backing of his home state Republican senators. But conservative activists don’t like that in 2012 he dismissed a case brought by the Catholic Diocese against the contraceptive mandate in the Affordable Care Act.
He dismissed it “without prejudice,” meaning he didn’t rule on the merits, explaining the case wasn’t “ripe” for litigation since the Obamacare regulations were still being developed at the time. Cruz called Ozerden’s opinion “cursory” and complained that the judge his given the plaintiffs “the back of the hand.”
Now that the GOP has almost unbridled power to shape the judiciary, they want loyal foot soldiers, not legal luminaries.
Ozerden is at least the third judicial nominee to be attacked from the right as the Senate has raced nominees through, suggesting Republicans are so emboldened that they are upping the ideological purity for judicial nominations while lowering the bar for professional credentials.
Last month, Michael Bogren withdrew his district court nomination in Michigan after Cruz and other conservative GOP senators said they wouldn’t vote for him. His ideological misstep occurred when he was an attorney for the city of East Lansing and defended the city’s anti-discrimination law as it pertained to LGBTQ people.
“I represent clients, not causes,” Bogren said when questioned about the case. “Under my role as an advocate, it’s different than what my role would be (as a judge).” Bogren had the support of Michigan Democrat Debbie Stabenow, but the blowback from Cruz and company over how he might rule on religious freedom issues forced him to withdraw.
Earlier this year, Neomi Rao, a Trump appointee who headed the White House Office of Information and Regulatory Affairs with a zeal for overturning federal regulations, faced tough questioning from Republicans about her nomination to a federal appeals court—not because she had never tried a case but because she was seen as insufficiently anti-abortion. Senators noted that she had not used the phrase “pro-life” when describing the movement against reproductive rights.
She assuaged those concerns at her hearing, and she now has a lifetime seat on the federal bench. The frustration Democrats feel in failing to stop the Trump train of judges was evident in Senator Dick Durbin’s comments on the Senate floor when he voted—as did every Democratic senator—against Rao:
“Isn’t there a good Republican conservative somewhere who’s actually been in a courtroom, actually made an appearance in a case, maybe even tried a case or filed a motion and would know a courthouse if they saw it and on not on TV? Is that too much to ask for a lifetime appointment to the second-highest court in the land?”
