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Conservatives Fear Trump Is About To Squander A Big Judicial Pick

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Kevin Daley Supreme Court correspondent
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  • U.S. District Judge Halil Suleyman “Sul” Ozerden is a leading contender for an appointment to the 5th U.S. Circuit Court of Appeals.
  • Some conservatives are unsatisfied with his record, in view of past decisions which quote pro-choice case law and turned back a challenge to Obamacare’s contraception mandate.
  •  Ozerden’s Republican allies are defending his conservative bona fides. 

Judicial conservatives are urging President Donald Trump not to nominate the rumored frontrunner for an imminent appointment to the 5th U.S. Circuit Court of Appeals, U.S. District Judge Halil Suleyman “Sul” Ozerden.

Though his Republican allies are staunchly defending Ozerden’s record against what they call a mounting “smear campaign,” some in the right-wing legal world are openly questioning his conservative credentials, citing a case in which he dismissed a challenge to Obamacare’s contraception mandate, and another in which he cited pro-choice case law.

“Judge Ozerden is not a conservative,” First Liberty Institute president Kelly Shackelford told The Daily Caller News Foundation. “This is a key appointment at a critical moment for this court. Those who voted for President Trump are hoping he will choose a conservative, not someone from the business-as-usual establishment crowd.”

The First Liberty Institute is a public interest law practice that litigates around religious freedom issues. The 5th Circuit is the federal appeals court covering Texas, Louisiana, and Mississippi. Circuit courts issue the final decision in the overwhelming majority of federal cases.

One decision animating conservative anxieties about Ozerden is his 2012 ruling in Catholic Diocese of Biloxi v. Sebelius, a statutory and constitutional challenge to the ACA’s contraception mandate. Ozerden dismissed the lawsuit on jurisdictional grounds in a scant fifteen page decision. His ruling concluded that the court had no power to hear the case, since the Obama administration was still amending regulations governing mandatory contraceptive coverage.

“Because the preventive services regulations are in the process of being amended, in their present form they represent a tentative agency position,” he wrote. “Therefore, they are not fit for judicial review at this time.” (RELATED: Democrats Move To Delay The Kavanaugh Hearings Because Of Cohen’s Plea)

The ACA provided an exemption to the contraception mandate for religious organizations, though the diocese argued the definition of qualifying organizations violated the constitutional separation of church and state. Unlike the preventive services regulations, the scope of the exemption had been finalized — but Ozerden’s decision does not directly address this claim.

“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,” Shackelford said.

Ozerden also refused the diocese’s request for oral argument in that case.

However, nineteen federal courts dismissed similar challenges to the contraception mandate on related grounds. The diocese of Biloxi did not appeal the ruling.

In another decision troubling to conservatives — Jarrell v. Pearl River County Sheriff’s Department — Ozerden approvingly cited several cases which derived from the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, in which a fractured Court upheld the core of Roe v. Wade.

The 2009 Jarrell case was occasioned when a Mississippi woman brought a civil rights lawsuit against a male county police officer, alleging he sexually fondled her without consent while transporting her in his squad car. The officer denied the allegations and moved to dismiss the case, arguing he had immunity from the lawsuit because he was acting in his official government capacity when the alleged conduct occurred.

The protection from lawsuits government officials enjoy when conducting official business is called qualified immunity. As a general matter, it is very difficult for plaintiffs to overcome qualified immunity when suing police officers. A 2016 law review article noted that the Supreme Court gave qualified immunity to government defendants in 16 of the 18 cases civil rights lawsuits it considered between 2001 and 2016.

But Ozerden denied the officer’s motion to dismiss, reasoning that the alleged conduct — if true — would violate the right to bodily sovereignty established by the 14th Amendment. In so doing, he cited two precedents which derive directly from the Casey decision, McClendon v. City of Columbia and Doe v. Taylor Independent School District.

Judicial Crisis Network (JCN) chief counsel Carrie Severino wrote a general survey of the judge’s work product for National Review Online, where she contended that his record raises basic questions of ability.

“Some of the misgivings about Ozerden are not grounded in ideology or judicial philosophy, but mere judicial competence,” she wrote, arguing he appears “inclined to dispose of cases prematurely and without thoughtful and thorough legal analysis.” Severino goes on to cite several cases in which his analysis was “unduly curt.”

Ozerden has a strong ally in Mississippi GOP Sen. Roger Wicker, who told TheDCNF that attacks on the judge are unfair and misguided. (RELATED: Colorado Is Going After Jack Phillips Of Masterpiece Cakeshop Again)

“I want President Trump to make his selection for the 5th Circuit based on the facts and the record — not on a smear campaign,” Sen. Wicker told TheDCNF. “I have spent a great deal of time vetting Judge Ozerden’s qualifications and record. This includes a thorough review of his judicial decisions, conversations with other members of the 5th Circuit, and the people who have known him best for decades. He believes in judicial restraint and the integrity of the law.”

“He is a solid conservative in the mold of Judge Edith Jones,” he added. Jones, a 1985 Reagan appointee to the 5th Circuit, is a deeply conservative jurist.

The judge’s 2007 appointment by President George W. Bush to the federal trial court in Gulfport, Mississippi was strongly supported by the state’s two Republican senators, Trent Lott and Thad Cochran. He was confirmed to that position on a 95-0 vote and is the first Turkish-American district court judge, according to the Turkish Coalition of America.

Ozerden is a graduate of Stanford Law School who served as an officer in the Navy for six years.

Trump has made five appointments to the 5th Circuit: Judges Don Willett, James Ho, Kyle Duncan, Kurt Engelhardt, and Andy Oldham, all of whom are considered reliable conservatives.

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