Federal appeals court nominee Halil “Sul” Ozerden came under pressure from a key Republican senator on Wednesday over concerns that he’s not ideologically conservative enough, citing in part an Obamacare challenge from the Catholic Church that he dismissed as a district judge.
Ted Cruz of Texas, where the U.S. Court of Appeals for the Fifth Circuit sits, raised points at Ozerden’s confirmation hearing that the Trump nominee’s body of work on the bench isn’t faithful to a conservative theory for interpreting the Constitution.
“For a lifetime appointment to the court of appeals, what I believe we should be looking for is a demonstrated record as a constitutionalist,” Cruz said. “As I look at your judicial record, I don’t see any concrete indicia of that.”
Ozerden, who has served as a district judge in Mississippi since 2007, defended his record, saying he’s spent most of his life in public service and that he wasn’t hostile to religious liberty as critics suggest.
“If you look at my record on the whole, you’ll see I’m committed to the principles of textualism, following the law, and following the Constitution,” he said.
It’s unclear how pressure from Cruz or outside groups over conservative principles and religious freedom might influence the Republican-led Judiciary Committee or the full Senate, if Ozerden’s nomination advances that far. It would be surprising if he survived the nomination without the support of Cruz and other conservatives who are circling.
Individual Republican senators have raised concerns sporadically about other Trump judicial selections. But for nominees in those cases who went onto be confirmed, questions usually were resolved quietly and behind closed doors.
A few nominations, however, have failed. Recently, private attorney Michael Bogren withdrew his nomination for a Michigan district court seat over opposition from a group of senators, including Cruz, over a religious freedom controversy.
Judiciary Chairman Lindsey Graham (R-S.C.) told Bloomberg Law that he was pleased with how Ozerden responded to questions at Wednesday’s hearing, an important indicator in his favor.
But Cruz noted that “a number of conservative groups” have pointed out that Ozerden hasn’t written decisions advancing conservative principles or been involved in other causes important to them, like religious freedom.
One of those groups, the Judicial Crisis Network, has said Ozerden wasn’t a textualist, or someone who adheres strictly to the words as written in statutes when interpreting law and deciding cases. The non-profit has advocated for Trump’s so far successful effort to reshape the judiciary with conservatives.
If confirmed, Ozerden would fill the last outstanding vacancy on the Fifth Circuit, which is widely considered one of the nation’s most conservative courts. It covers Texas, Louisiana and Mississippi.
Cruz and other senators specifically raised 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 challenging the Affordable Care Act’s requirement that insurance plans cover contraception.
Cruz said Ozerden gave the “back of the hand” to the church.
Ozerden responded that his hands were tied. “It was binding Fifth Circuit precedent that dictated the outcome of that case,” he said.
He added that his decision was consistent with about two dozen other similar cases around the country at that time. Ozerden denied allegations that he was “hostile to religion” and said he has upheld religious liberties in a number of other cases.
Carrie Severino, head of Judicial Crisis Network, wrote in a 2018 National Review article that she was concerned by Ozerden’s inclination to “dispose of cases prematurely” and by his lack of textualist track record.
"[I]n the decade that Ozerden has been on the federal bench, he has not demonstrated a commitment to textualist methods of statutory interpretation,” Severino wrote.
Severino also wrote that Ozerden’s reversal rate was “unusually high,” something Ozerden contested when questioned by Sen. Josh Hawley (R-Mo.) about the topic at Wednesday’s hearing.
Ozerden said only about a dozen of the 300 cases that the Fifth Circuit reviewed were ultimately reversed. Severino declined to comment following Wednesday’s hearing.
Sen. Roger Wicker (R-MS) praised Ozerden for his service in the Navy and for his role as a community leader at his church. His other home-state senator, Republican Cindy Hyde-Smith, said Ozerden had “impeccable ethics” and noted that he received a rating of Well-Qualified from the American Bar Association.
Despite Republican concerns that Ozerden isn’t far enough to the right, Sen. Mazie Hirono (D-Hawaii) told Bloomberg Law he’s already “way too conservative” for her.
“A lot depends on where the Republicans are going to go,” she said. “You can probably guess which ones are going to vote against him.”