President Trump promised the American people that he would nominate constitutional conservatives to the federal bench. He has delivered on that promise in spades. But establishment politicians are pushing President Trump to nominate Judge Sul Ozerden to the U.S. Court of Appeals for the Fifth Circuit.
That would be a big mistake.
Ozerden is not a conservative trial judge. His judicial philosophy departs from the legacy of the late Justice Antonin Scalia and is unlike that of Justice Neil Gorsuch and Brett Kavanaugh, not to mention the two dozen federal appellate judges and dozens more federal trial court nominees President Trump nominated.
Not all Republicans are constitutional conservatives. Indeed, President Trump came to office on the promise to shun business-as-usual Washington, draining the swamp of establishment types that project a conservative façade, but never deliver. His conservative political agenda — institutionalizing religious liberty, enacting tax reform, America-first foreign policy — is evidence of his commitment to delivering on that conservative agenda.
But now, just when President Trump has an opportunity to solidify a conservative majority on the Fifth Circuit — of which my home state of Texas is a part, along with Louisiana and Mississippi — establishment Republicans are pressuring the president to nominate one of their own.
As his past decisions indicate, Ozerden is not a judge like those the president promised to nominate: judges who will protect religious liberty and the lives of the unborn. Take a recent decision by the Fifth Circuit as an example of how one vote could dangerously shift the balance away from the protection of our first freedom: religious liberty.
In Whole Woman’s Health v. Smith, abortionists sued over abortion regulations in Texas. The Texas Conference of Catholic Bishops got involved in the debate over those regulations, exercising their religious freedom to advance Catholic teaching on life.
A federal trial judge in Texas issued an order forcing the bishops to disclose internal church communications. The bishops filed an emergency appeal with the Fifth Circuit.
A three-judge panel, which thankfully voted 2–1 in favor of the bishops, reversed the trial judge’s destructive order. Thankfully, those two judges were Edith Jones, appointed by President Reagan, and Jim Ho, a solid conservative jurist who was appointed by President Trump.
But, what if one of those judges had been Ozerden? His past decisions suggest the outcome might be 2-1 against the bishops, opening the internal communications of a church to the inspection of pro-abortion activists.
In Catholic Diocese of Biloxi v. Sebelius, Ozerden swung and missed at an opportunity to join conservative judges who rightly ended the bureaucratic overreach that was the Obamacare contraceptive mandate’s application to religious organizations. Instead, he rejected requests for oral argument by the diocese’s attorneys and dismissed their challenge to the mandate.
Without a single sentence in his opinion explaining why, and ignoring recent case decisions favoring religious liberty, he entrusted the diocese’s religious liberty to the fleeting benevolence of the same government agencies responsible for endangering that liberty in the first place.
Ozerden is no conservative. He has never been affiliated with the conservative movement, volunteered his time to advance conservative causes, been active in conservative legal circles, or written any decisions that have advanced conservative principles. Instead, he voted against conservatives in a religious-liberty challenge to Obamacare’s abortion-pill mandate and has repeatedly disappointed those who voted for President Trump and his brand.
There’s one more open seat on the Fifth Circuit. With a solid judge, it would become the first reliably conservative appeals court in the nation. Why would President Trump waste an opportunity on a judicial seat to uphold his promise to nominate constitutional conservatives by nominating an establishment moderate like Ozerden? I pray he does not.
There are plenty of excellent conservatives for President Trump to choose from in Mississippi, but if Mississippi’s home-state senators won’t sign off on one of those proven originalists for the Fifth Circuit, then Texas will happily recommend another Jim Ho, Don Willett, Kyle Duncan, or Andy Oldham to fill that seat.
There are plenty of rock-ribbed conservatives in the Lone Star State to help President Trump keep his promise to nominate Scalia-like judges. This is the very reason many voted to put him in the presidency and are trusting him now, as the Fifth Circuit majority is about to be determined.
Kelly Shackelford is president and CEO of First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.