Bench Memos

Law & the Courts

Conservatives Voice Concerns Over Potential Fifth Circuit Nominee

Last week the Senate confirmed Marvin Quattlebaum and Jay Richardson to the Fourth Circuit, marking the 25th and 26th judges, respectively, confirmed to the federal courts of appeal to date during the Trump presidency.  And with more than four months still to go before the end of the 115th Congress, it is likely that President Trump will best the previous record set by President George H.W. Bush (22 circuit court judges in the first two years of a presidency) by a healthy margin.

These 26 (and counting) circuit court judges have been some of the best we have ever seen ascend to the federal bench.  They include in their ranks Supreme Court clerks, influential law professors, private practitioners, top federal prosecutors, lawyers from the Department of Justice’s Office of Legal Counsel (considered the “brain trust” of any administration), state attorneys and solicitors general, and numerous accomplished state court judges. Republicans of all stripes (and even Democrats) agree that the President has nominated and confirmed the very best of the best.  Oh yeah, he’s also nominated Neil Gorsuch and now Brett Kavanaugh the Supreme Court in those same two years.  Together with Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley, the president is reshaping the federal judiciary, and given that these are life-tenured positions, the impact will endure for decades.

Yet, conservatives are growing concerned over the possibility of the remaining vacancy on the Firth Circuit being filled by Halil Suleyman (“Sul”) Ozerden, a current federal district judge in the Southern District of Mississippi.  President George W. Bush nominated Ozerden to the seat in 2007.

According to Ken Klukowski of Breitbart, “rumors are circulating in D.C. that some establishment politicians are pressuring the president to appoint a judge who has a mixed record and no true conservative credentials.”  He writes, “Ozerden’s time on the federal trial bench shows a consistent pattern of refusing to lead or to take a stand on important legal issues.” According to Klukowski:

Ozerden has written 1,100 orders and opinions over the past decade, but they do not demonstrate any focus on advancing the original meaning of the Constitution, stringently adhering to the text of federal law, or taking the time to develop the law with full-length, persuasive opinions that advance the rule of law.

Some of the misgivings about Ozerden are not grounded in ideology or judicial philosophy, but mere judicial competence.  Ozerden has an unusually high reversal rate:  of his 59 decisions that have been reviewed by the Fifth Circuit, 25% have been overturned.  While a reversal rate on its own isn’t necessarily conclusive evidence of poor judicial decision-making or a lack of competence, remember that we are talking about the Fifth Circuit here, not the Ninth Circuit.  Ozerden has been reversed by some of the most conservative judges in the country, including Edith Jones and Jerry Smith.  And a number of those reversals from three-judge panels have been unanimous.

Perhaps even more concerning is the reasoning behind the reversals.  Court watchers have noted that Ozerden is inclined to dispose of cases prematurely and without thoughtful and thorough legal analysis.  Klukowski reports:

[Ozerden’s] critics note that his legal analysis is typically very short, and fails to cite key Fifth Circuit precedents which he is required to follow as a trial judge.

For example, in A.K.W. ex rel. Stewart v. Easton Bell Sports, Inc., the Fifth Circuit reversed Ozerden’s grant of summary judgment, finding that he gave short shrift to expert testimony in his opinion, and did not examine all of the legal elements for a design-defect claim required under Mississippi law.

In Saucier v. Aviva Life & Annuity Co, a three-judge panel for the Fifth Circuit reversed Ozerden in his finding that federal abstention was appropriate.  Abstention analyses call for consideration of the facts in light of a multi-factored test. Yet the analysis in Ozerden’s opinion was unduly curt and lacked consideration of governing Fifth Circuit precedents.

Klukowski details a further example of a premature disposition in a case, Time Insurance Company v. White, where Ozerden dismissed the case in the preliminary stages of litigation.  Writing for a unanimous panel vacating Ozerden’s ruling, Judge Edith Jones wrote,“With all due respect to the district court, its efforts to streamline this case resulted in a premature disposition.” The three-judge panel determined that Fifth Circuit precedent allowed the plaintiff claimant to amend his original answer at that beginning stage of litigation, contrary to Ozerden’s ruling.

Also concerning is the fact that in the decade that Ozerden has been on the federal bench, he has not demonstrated a commitment to textualist methods of statutory interpretation.  In a 2016 case, Glaskox v. George County Hospital, Ozerden invoked analogical reasoning from persuasive authority to resolve a statutory question rather than looking first to the text itself.  Likewise Ozerden’s 2012 opinion In re S. White Transportation Inc. analyzed a question of statutory interpretation primarily by looking to relevant precedents with little regard for dictionary-based textualist reasoning.  Relatedly, Ozerden has not shied away from relying on precedents grounded in legislative history, as he did in both In re S. White Transportation Inc. and Glaskox.

I believe that the judges that President Trump has nominated to the Supreme Court and the federal circuit courts of appeal will be the crown jewel of the President’s legacy. The Fifth Circuit is no exception.  The appellate judges that President Trump has nominated to the court thus far, such as Jim Ho, Kyle Duncan, Don Willett, and Andy Oldham, are committed to following the Constitution and upholding the rule of law. Furthermore, this is an issue that unites and bolsters Republicans heading into the midterm elections.

Mississippi is as red a state as they come.  It sure seems like we could do better than Judge Ozerden there.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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