The United States Law Week

Seat on Conservative Fifth Circuit Tough for Trump to Fill

May 20, 2020, 8:50 AM

President Donald Trump has made good on his promise to reshape the federal judiciary with conservatives, but filling one seat on arguably the most conservative U.S. appellate court has been one of the hardest to get done.

The Senate Judiciary Committee will on Wednesday hear from Cory Wilson, a Mississippi state court judge with a penchant for Twitter who’s the president’s second nominee to fill a longstanding vacancy on the U.S. Court of Appeals for the Fifth Circuit.

Wilson emerged after Trump’s previous nominee for the spot on the New Orleans-based court, Halil Suleyman Ozerden, faltered over doubts by key Republicans about his conservative credentials.

Ozerden was tapped nearly a year ago and twisted in the wind until March when he was replaced by Wilson, who was at the time being considered for a district court vacancy. The seat has been unfilled for most of Trump’s presidency.

It is the only immediate vacancy at the appeals court level. It’s also considered a “judicial emergency,” a term given to vacancies that increase the workload for the remaining judges on the court.

Although there’s one other circuit court pick in the judicial nominations pipeline, that nominee would fill a future vacancy. Justin Walker, Trump’s pick for the District of Columbia Circuit, would replace Judge Thomas B. Griffith after his retirement in September. Wilson, who like Walker is expected to be confirmed absent a surprise, would fill a seat that became vacant when Judge Grady Jolly took senior status in October 2017.

The seat Wilson’s aiming to fill didn’t prevent Trump from closing the deal on other appointments to the Fifth Circuit. If confirmed, Wilson would join five other of his appointees on that court seated early in his presidency.

With the help of a friendly Republican-led Senate, Trump has so far appointed 190 district and appeals court judges to the federal judiciary, in addition to two Supreme Court justices.

A former state legislator, Wilson this week received a “Well Qualified” rating from a committee of the American Bar Association that reviews and rates nominees, improving on his previous “Qualified” rating for the Southern District of Mississippi seat that he was being vetted for before the Fifth Circuit nomination came his way.

Healthcare Questions

He will likely face healthcare questions at his confirmation hearing. They have been point of concern for lawmakers on both sides of the aisle for different reasons when considering the Fifth Circuit seat and amid the coronavirus pandemic.

The Fifth Circuit, which covers Mississippi, Louisiana, and Texas, is often considered one of the most conservative courts in the country. And it’s also been a key stop for challenges to the Affordable Care Act. The Supreme Court is due next term to take up a challenge to a divided Fifth Circuit ruling that a provision requiring Americans to purchase health insurance is unconstitutional.

Treatment of the health law proved to be a roadblock for Ozerden, a military veteran and a federal district court judge whose nomination failed when opposed by two Senate Judiciary Republicans, Ted Cruz of Texas and Josh Hawley of Missouri.

Both senators raised concerns about Ozerden’s 2012 decision to grant the Obama administration’s motion to dismiss the Catholic Church’s petition in Catholic Diocese of Biloxi v. Sebelius, a case challenging the Affordable Care Act’s requirement that insurance plans cover contraception.

That failure was a rarity for Trump, who has prioritized appeals court picks with the help of Majority Leader Mitch McConnell, R-Ky., and other Senate allies on judicial appointments. Trump’s 51 circuit court appointees represent more than a quarter of judges at that level nationwide. Circuit courts sit one level below the Supreme Court and are the last stop for all but a small number of federal appeals.

Liberal Opposition

Wilson critiques of the health law are one of the primary reasons for Democratic opposition to his nomination. In op-eds written in 2012, 2013 and 2014 when he was an attorney in private practice, he encouraged the Supreme Court to strike down Obamacare. He called it “illegitimate” and “perverse.”

Several liberal-leaning an health groups said those comments indicate Wilson would rule against it if a related case came before him on the Fifth Circuit. Its signers include the NAACP, Protect Our Care, National Association of Social Workers, Bazelon Center for Mental Health Law, and People for the American Way.

That could be called into question at the hearing, as similar comments about the health law made by Walker were a target for Democrats during his confirmation hearing last week.

Wilson has said previously that statements included in op-eds wouldn’t impact his decision-making on the federal bench.

Axing Twitter

At his last hearing for his previous nomination, Wilson also faced questions about comments he made on his Twitter account at the expense of Democrats but said he’d delete that account if confirmed.

Wilson called New York Democratic Rep. Alexandria Ocasio-Cortez’s agenda a “claptrap,” used a “#CrookedHillary” hashtag in a post about then-presidential candidate Hillary Clinton’s emails, and referred to former President Barack Obama as a “king” when he said he would advance immigration policy on his own.

“I think, senator, if confirmed, I would disable my Twitter account,” Wilson said in an exchange with Sen. Mazie Hirono, a Hawaii Democrat. But Republicans defended the nominee, saying those comments made in his role as a state lawmaker and private citizen would be separate from his role as a judge.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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