Greg Abbott's Adviser Awaits Senate Approval To Fifth Circuit | KERA News

Greg Abbott's Adviser Awaits Senate Approval To Fifth Circuit

May 31, 2018

A longtime adviser to Gov. Greg Abbott is awaiting approval from the Senate for a seat on the Fifth Circuit Court of Appeals.

Andrew Oldham was approved by the Senate Judiciary Committee last week, alongside two lawyers nominated for federal district courts in Texas, Alan Albright and Micheal Truncale. A vote from the full Senate is the final hurdle before they're confirmed to the federal bench.

President Trump nominated Oldham to the influential appeals court that hears cases from Texas, Louisiana and Mississippi. Democrats and liberal groups have opposed him, citing a career advocating conservative positions. As a deputy solicitor general for Texas, and now as Republican Gov. Greg Abbott’s chief legal adviser, Oldham worked on high-profile cases and legislation from voting rights to immigration, abortion to federal regulations.

Oldham wanted to make one thing clear when he showed up to his hearing in front of the Senate Judiciary Committee: He’d been a lawyer, which meant forcefully arguing one side of some pretty controversial issues. But, if confirmed as a judge, Oldham said he’d be a blank slate.

“I would leave behind all of those litigating positions, all of those advocacy positions, and swear an oath simply to apply the law as an impartial jurist,” he said.

Democrats seemed skeptical, and grilled him on the conservative arguments he’d made in courts and in speeches and interviews.

Perhaps the toughest questioning came from Sen. Sheldon Whitehouse, a Rhode Island Democrat. He took issue with a speech Oldham had given, in which he’d said federal administrative agencies were illegitimate, singling out the Environmental Protection Agency, the Internal Revenue Service and the Department of Labor.

Oldham said he was just being a good lawyer.

“I believe that the comments that you were quoting came from a speech that I was giving on behalf of the governor. He was my client, and I was advocating his position,” he said.

Whitehouse didn’t buy it. He focused in on Oldham’s use of the word "enraged."

“You said that it was enraging. Were you talking about someone else when you said you were enraged by the illegitimate administrative state?” Whitehouse said. “Don’t kid me here.”

During the hearing, both Texas senators spoke on behalf of Oldham, including the idea that a judge can act impartially, despite a career litigating.

"I think it's not been a positive development for people in the political world to view a lawyer who's advocating for a client, and is ethically obligated to do so, that they essentially have now become branded with the policy choices by that client," said Sen. John Cornyn.

That led Sen. Mazie Hirono of Hawaii to ask Oldham if he would recuse himself on the Fifth Circuit from cases involving the issues he’d litigated. He told her he would.

"I would leave behind all of those litigating positions, all of those advocacy positions, and swear an oath simply to apply the law as an impartial jurist."

All throughout the hearing, Oldham said the code of conduct applying to federal judges and nominees prohibits him from commenting on political cases and issues. So when he was asked if he believed voter fraud was widespread (despite evidence showing it is not), or that implicit racial bias is real, or that there are disparities in the justice system between whites and people of color, he avoided direct answers.

Even when Oldham was asked whether the Supreme Court got it right in the 1954 Brown v. Board of Education decision -- which outlawed segregation in public schools -- he danced around an answer.

"Even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on," Oldham.

When pressed, he said the idea of “separate but equal” was "an egregious legal error" that was corrected by the Brown decision.

At one point, even a Republican -- Sen. John Kennedy of Louisiana -- seemed frustrated after asking a series of hypotheticals.

“I know that you folks are really well-coached because you want to be confirmed,” he said. “I’m not going to ask about precedent. I get that, but I do want to know what you think. I know you’re a really smart guy and I know you can give me an answer.”

“We’ve seen a progression toward this non-answer answer in the confirmation hearings,” said Steve Vladeck, a law professor at the University of Texas. “But I think the breadth of the non-answers is something that separates out the Trump nominees from their predecessors.”

Vladeck says President Trump’s judicial picks have been rocketing through the confirmation process, mostly confirmed on partisan lines. Especially on the appeals courts, he says, the candidates look and sound the same: Mostly white, mostly male, coming from a handful of law schools, all with sterling conservative credentials.

“Looking at the record of these nominees, it’s hard to believe what they’re saying with a straight face that they just don’t have views that’re going to influence how they approach some of those cases if they come back to them,” he said.

If confirmed, Oldham would join four other Trump appointees on the Fifth Circuit Court of Appeals. At 39, Oldham would be the youngest. Because federal judges have lifetime appointments, Vladeck says, Trump’s effect on the federal courts will be felt for decades.

Watch Oldham's hearing here