Nomination of Kurt Engelhardt to the U.S. Court of Appeals for the Fifth Circuit Questions for the Record

January 17, 2018

QUESTIONS FROM SENATOR FEINSTEIN

Would you describe your approach to constitutional interpretation to be “originalist”? If so, what does that mean to you? If not, how would you describe your approach?

As a district judge, and a prospective Circuit Judge, I have been and will be bound by oath to interpret the United States Constitution by applying all binding authority from the United States Supreme Court and the United States Fifth Circuit. I believe an originalist approach to Constitutional interpretation means simply that its provisions are understood in the context of their original public meaning. Where the Supreme Court has interpreted constitutional provisions by discerning their original public meaning, I have and will faithfully follow those precedents.

Please respond with your views on the proper application of precedent by judges.

When, if ever, is it appropriate for lower courts to depart from Supreme Court precedent?

It is never appropriate for lower courts to depart from the binding precedent of Supreme Court holdings.

Do you believe it is proper for a circuit court judge to question Supreme Court precedent in a concurring opinion? What about a dissent?

Under truly rare circumstances, a circuit court panel or judge may, in a concurring or dissenting opinion, respectfully suggest that the Supreme Court might review its prior holding. In this unique circumstance, it is incumbent upon the judge to (a) follow the Supreme Court precedent even though he/she believes it might be in error, and (b) while following the Supreme Court’s majority opinion, respectfully suggest it be revisited by explaining specifically why, including legal authorities supporting such suggestion.

When, in your view, is it appropriate for a circuit court to overturn its own precedent?

Generally, to overrule a decision rendered by a prior panel of the Fifth Circuit, the entire en banc court must vote to review the matter en banc, and take the action of overruling the previous panel. See United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc).

When, in your view, is it appropriate for the Supreme Court to overturn its own precedent?

As a nominee for a Circuit court, and a sitting United States District Judge, it is inappropriate for me to express a view or opinion on when the Supreme Court should appropriately overturn its own precedent. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (only the Supreme Court has “the prerogative of overruling its own decisions”).

When Chief Justice Roberts was before the Committee for his nomination, Senator Specter referred to the history and precedent of Roe v. Wade as “super-stare decisis.” A text book on the law of judicial precedent, co-authored by Justice Neil Gorsuch, refers to Roe v. Wade as a “super-precedent” because it has survived more than three dozen attempts to overturn it. (The Law of Judicial Precedent, Thomas West, p. 802 (2016).) The book explains that “superprecedent” is “precedent that defines the law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.” (The Law of Judicial Precedent, Thomas West, p. 802 (2016))

Do you agree that Roe v. Wade is “super-stare decisis”? Do you agree it is “superprecedent?”

As a sitting United States District Judge (and Circuit Judge, if confirmed), there is no distinction between precedent of the Supreme Court. All Supreme Court precedent, including Roe, is equally binding.

Is it settled law?

See answer to question 3a.

In Justice Stevens’s dissent in District of Columbia v. Heller he wrote: “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Do you agree with Justice Stevens? Why or why not?

Although I have read the Supreme Court’s opinion in Heller, including the dissenting opinions, I have not sufficiently researched the voluminous material available to answer this question. As a United States District Judge, and as a prospective Circuit Judge, I will faithfully apply the controlling precedent of Heller and other Supreme Court opinions, without regard to my personal views as to the merits of those opinions.

Did Heller leave room for common-sense gun regulation?

The Supreme Court in Heller expressly stated, “the right secured by the Second Amendment is not unlimited,” adding, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” 554 U.S. 570, 626-27 (2008).

Did Heller, in finding an individual right to bear arms, depart from decades of Supreme Court precedent?

See answer to question 4a. I note that the majority and dissenting opinions disagreed on this question, however I will fully and faithfully apply the binding precedent of the majority opinion.

In Obergefell v. Hodges, the Supreme Court held that the Constitution guarantees same-sex couples the right to marry. Is the holding in Obergefell settled law?

Obergefell is a binding precedent of the Supreme Court, and should be applied fully and faithfully by judges of lower courts.

At your nomination hearing, several Senators asked you questions about your opinion in United States v. Bowen. You granted defendants in that case a new trial, but without making a finding of specific prejudice, as is typically required under Federal Rule of Criminal Procedure 33. Appealing your decision, the Justice Department argued that if the Fifth Circuit upheld your grant of a new trial, it should nevertheless reassign the case to a different judge, in part because you had “attempted to act simultaneously as a neutral arbiter of defendants’ new trial motion and as an independent investigator of government misconduct,” dual roles that might lead “an objective observer [to] reasonably question [your] impartiality.” (Corrected and Redacted Brief for the United States, at *170, United States v. Bowen, 2014 WL 4386627 (5th Cir. 2014))

Do you agree that an “objective observer” might have “reasonably question[ed] [your] impartiality” given your dual role, ruling over the defendants’ Rule 33 motion and acting “as an independent investigator of government misconduct”?

No. This issue was presented by the government to the United States Fifth Circuit Court of Appeals, and the Fifth Circuit held that the government’s motion to remove me as the presiding judge of a new trial was “meritless.” 799 F.3d 336, 359 (5th Cir. 2015). Moreover, the government had never presented this argument to me, nor objected to my inquiries at the district court level. My approach was consistent with my ethical duties not to serve “as an independent investigator of government misconduct” other than as to those representations made to me as the presiding judge in that particular case. See La. R. Prof’l Conduct 3.3 (imposing a duty of candor to the Court).

What steps did you take to ensure that you did in fact remain impartial in considering the defendants’ Rule 33 motion?

Among other things, I repeatedly sought the government’s clarification, and further details regarding alleged government misconduct. I also afforded the government several opportunities to respond fully and candidly under seal, and on the basis of an in-camera review.

In Truvia v. Julien, you considered claims that the Orleans Parish District Attorney’s Office “had a policy, custom, or practice of violating criminal defendants’ constitutional rights, under Brady, by purposefully withholding exculpatory evidence,” and that the District Attorney, Harry Connick, had “failed to train and supervise his prosecutors on the requirement of Brady such that his failure constitutes deliberate indifference actionable under” federal law. (Truvia v. Julien, 2012 WL 3948613 (E.D. La. Sept. 10, 2012)) Those claims stemmed from the office’s 1976 prosecution of Truvia for murder.

Your opinion gave great weight to testimony from Connick and other prosecutors in the office, including the lead Assistant District Attorney (ADA) in Truvia’s case, stating that the office’s “official policy recognized prosecutors’ legal and ethical obligations to comply with applicable law concerning evidence disclosure, including Brady . . . and the Louisiana Code of Professional Responsibility.” You also appeared to credit deposition testimony and affidavits explaining “that Connick never ‘encouraged, directed, or even hinted, that anyone should cover up, destroy, or hide Brady material,’” and you emphasized policies and practices in place during the 1970s that addressed the need to disclose exculpatory evidence

interoffice updates, “in house” group training sessions, and consultation and partnership between junior and senior ADAs. Finally, you concluded that plaintiffs had identified “no reported instance of similar Brady violations, occurring prior to 1976 that arguably may have alerted Connick to a need at that time for additional training of his ADA’s regarding disclosure of exculpatory evidence.”

On the other hand, you appeared to give very little weight to allegations in the plaintiff’s complaint, including that new ADAs conducted trials during their first week of service without supervision; that Connick “implemented a specific unwritten policy and custom that the District Attorney’s office would come up with any reason whatsoever not to provide criminal defendants with exculpatory Brady materials”; and that it was “[t]he custom and practice of the District Attorney’s office . . . to deny requests for Brady information as ‘not entitled’ . . . and therefore to attempt to shift the burden to the criminal defendant and/or the judge to protect their Constitutional rights to Brady exculpatory evidence.” (Amended Complaint, Truvia v. Julien, 2004 WL 2687315)

In addition, at your nomination hearing, you stated that the Supreme Court had in Connick 1985. Thompson given you a “road map” of what the plaintiff in Truvia had to show in order to recover financially. But Connick did more than just provide this “road map.” As the majority itself noted — despite putting up a roadblock to Mr. Thompson’s recovery of financial damages — “no prosecutor remembered any specific training session regarding Brady prior to 1985.” (Connick v. Thompson, 563 U.S. 51, 58 (2011))

Given the allegations in the plaintiff’s complaint, along with prosecutors’ acknowledgment — as stated by the Supreme Court in Connick — that the office did not conduct any training sessions on Brady in the period when Mr. Truvia was prosecuted, why did you choose to credit the claims of Connick, Julien, and the other ADAs?

While the case was pending, the parties agreed that the anticipated Connick v. Thompson opinion, 563 U.S. 51 (2011), would have great bearing in the Truvia matter pending before me, and I stayed the Truvia matter until the Supreme Court ruled. Following the Supreme Court’s opinion in Connick v. Thompson, I requested and received additional extensive briefing from both parties. My role was not “to credit the claims of Connick, Julien, and other ADA’s,” but rather, pursuant to Federal Rule of Civil Procedure 56, to evaluate whether the plaintiff presented sufficient evidence to meet his burden and overcome the defendants’ submissions. For the reasons stated in my ruling, the plaintiff was unsuccessful. My ruling was affirmed. Truvia v. Connick, 577 F. App’x 317 (5th Cir. 2014), cert. denied, 135 S. Ct. 1550 (2015).

In Connick v. Thompson, Justice Ginsburg, dissenting from the majority, wrote that “the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.” Do you disagree with this assessment?

The majority opinion in Connick v. Thompson is binding precedent, and I applied it to the matter presented to me in the Truvia case.

In your more than 16 years on the bench, have you ever awarded financial or other damages to a plaintiff who alleged police or prosecutorial misconduct? If so, please provide examples of any such cases, including citations.

No, but the parties in such cases regularly reach settlements prior to a damages assessment by a court.

Truvia asserted claims under 42 U.S.C. § 1983, among other statutes. In your more than 16 years on the bench, in how many § 1983 lawsuits have you denied a defendant’s motion for summary judgment? Please provide examples of any such cases, including citations.

I have denied a defendant’s motion for summary judgment on claims brought pursuant to 42 U.S.C. § 1983 in at least five cases:

In Claudia Sims v. City of New Orleans, No. Civ.A.03-3169, 2005 WL 1400440 (E.D. La. 2005), I denied the defendant’s motion for summary judgment as to plaintiff’s claims arising out of alleged strip searches conducted by New Orleans Police Department officers. The case settled shortly after my denial of summary judgment.

In August v. Gusman, No. 06-3962, 2008 WL 466202 (E.D. La. Feb. 13, 2008), I denied a defendant’s motion for summary judgment on a plaintiff’s § 1983 claim of medical indifference. The plaintiff alleged that a prison doctor was indifferent to his medical needs when he was left in the medical unit without medical attention for his infected knee and high blood pressure during and immediately following Hurricane Katrina. I later denied a second motion for summary judgment by the doctor. No. 06-3962, 2009 WL 166653 (E.D. La. Jan. 22, 2009).

In Beckett v. Serpas, No. 12-910, 2013 WL 2921639 (E.D. La. June 12, 2013), I denied defendants’ motion for summary judgment on a plaintiff’s § 1983 claim of retaliation. The plaintiff, a police officer with the New Orleans Police Department, alleged that she was fired after providing testimony favorable to a criminal defendant.

In De La Cruz v. Edwards, No. 14-1729, 2015 WL 6696427 (E.D. La. Nov. 3, 2015), I denied the defendants’ motion for summary judgment on a plaintiff’s § 1983 claim of excessive force. The plaintiff alleged that a Tangipahoa Parish deputy used excessive force, and committed assault and battery, against the plaintiff. This case was resolved short of trial.

In Morris v. McKessie, No. 14-1741, 2016 WL 740340 (E.D. La. Feb. 25, 2016), I denied a defendant’s motion for summary judgment on a plaintiff’s § 1983 claim of excessive force and battery. The plaintiff alleged that a Gretna, Louisiana police officer used excessive force when arresting the plaintiff.

At your nomination hearing, you were asked about several employment discrimination lawsuits. One such suit was Ellzey v. Catholic Charities Archdiocese of New Orleans. Despite granting summary judgment on procedural grounds — Ellzey had failed to exhaust her administrative remedies — you still considered the merits of Ellzey’s claims. You found that her allegations of sexual harassment — “sensual back rubs” every 1-2 weeks, and comments on her physical appearance — did “not rise to the level of actionable harassment.” You concluded that “under existing case law, these alleged instances and any other unwelcomed physical-touching allegations were neither severe nor physically threatening, though quite unwelcome and indeed inappropriate.” (833 F. Supp. 2d 595 (E.D. La. 2011)) In reaching this conclusion, the “existing case law” you cited consisted of only two cases.

One was a 2003 case from the Eastern District of Texas. The other was a 1993 case from the Seventh Circuit.

Why did you decide to consider the merits of Ellzey’s claims when you had already determined her suit should be dismissed for failure to comply with Title VII’s exhaustion requirement?

The defendant’s motion for summary judgment argued several grounds for dismissal, including the exhaustion requirement of Title VII as well as on the substantive merits. Because the Court’s ruling might be reviewed by the Fifth Circuit on appeal, I frequently address all or most grounds raised in a motion for summary judgment for the benefit of the Court of Appeals, and in the interest of judicial economy (i.e., to avoid later piecemeal appeals in the same case).  Therefore, in order to present the full disposition of the plaintiff’s claims under the law, I proceeded to the defendant’s motion as to the merits of the plaintiff’s claim.

At the time you issued your opinion, was there any controlling Fifth Circuit precedent holding that conduct similar to that alleged in Ellzey did “not rise to the level of actionable harassment”?

Yes. As noted in my opinion, the Fifth Circuit’s decision in Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) included comments by the plaintiff’s colleague that the Fifth Circuit considered “boorish and offensive,” but nonetheless, did not rise to the level of actionable harassment.

At the time you issued your opinion, were there any cases from within the Fifth Circuit — whether at the circuit or district court level — that suggested conduct similar to that alleged in Ellzey could in fact give rise to a Title VII harassment claim?

See my answer to Question 8.b. above.

In addition to Ellzey, you also granted summary judgment to the defendant in several other Title VII suits that alleged, among other things, pregnancy discrimination and a hostile work environment. These cases included Taylor v. Jotun Paints and EEOC v. Rite-Aid, both of which were discussed at your nomination hearing, and Kreamer v. Henry’s Marine, a same- sex sexual harassment suit.

a.       In your more than 16 years on the bench, in how many Title VII cases have you denied a defendant’s motion for summary judgment? Please provide examples of any such cases, including citations.

It is not possible to quantify how many unsuccessful motions for summary judgment appeared on my docket in Title VII cases. In Title VII cases, settlements are frequently reached, with the assistance of the Court, early in the proceedings.

Moreover, settlements in Title VII cases are also frequently reached once a motion for summary judgment has been filed and is pending at the time of settlement. In addition, such motions may be subject to denial from the bench, without any written opinion.

Nonetheless, a search of the Westlaw and LEXIS databases indicates that I denied motions for summary judgment in cases involving claims under Title VII in at least the following cases:

In Templet v. Hard Rock Const. Co., No. 02-0929, 2003 WL 181363 (E.D. La. Jan. 27, 2003), I denied the defendant’s motion for summary judgment where a plaintiff asserted, among other claims, a Title VII pregnancy discrimination claim.

In Burrell v. United State Postal Serv., No. 00-3273, 2002 U.S. Dist. LEXIS 6886

(E.D. La. 2002), I denied the defendant’s motion for summary judgment with respect to a plaintiff’s Title VII claim of retaliatory discrimination claim based on appointment to a new position following a reorganization.

In addition, to the cases cited above, in Baricuatro v. Indus. Pers. & Mgmt. Servs., No. 11-2777, 2014 U.S. Dist. LEXIS 92356 (E.D. La. July 7, 2014), I denied the defendant’s motion for summary judgment on the plaintiffs’ claim of discrimination in the conditions of their employment because of their race. This case was brought pursuant to 42 U.S.C. § 1981. As I noted in my decision, summary judgment is governed in § 1981 cases pursuant to the same standards employed in Title VII cases.

You have denied the certification of a class in at least three cases over which you have presided. In one, In re FEMA Trailer Formaldehyde Products Liability Litigation, you claimed that plaintiffs — residents displaced by Hurricanes Katrina and Rita who lived temporarily in certain trailers that contained high levels of formaldehyde — had failed to show numerosity with respect to certain subclasses, as well as commonality, typicality, and adequacy of the proposed class representatives. You likewise denied class certification in Baricuatro v. Industrial Personnel and Management Services, Inc., a suit alleging violations of the Fair Labor Standards Act, Trafficking Victims Protection Act of 2003, and RICO, and in In re American Commercial Lines, LLC, in which plaintiffs alleged physical and emotional damages arising from the release of diesel fuel into the Mississippi River.

In your more than 16 years on the bench, in how many total cases have you granted class certification? Please provide examples of any such cases, including citations.

It is incomplete to state that I denied class certification in FEMA Trailer Formaldehyde Products Liability Litigation. While I denied class certification at one stage in the litigation, I later granted class certification in order to facilitate the extensive settlement agreement reached. In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. 2:07-MD-1873, 2011 WL 11677126 (E.D. La. Nov. 17, 2011).

I have also granted class certification in at least the following cases:

Merrick v. Moneyquest Corp., No. 05-cv-1904 (E.D. La. Nov. 8, 2006) (unpublished order)

White v. Imperial Adjustment Corp., No. 99-3804, 2002 U.S. Dist. LEXIS 26610 (E.D. La. Aug. 6, 2002).

In 2008 and 2009, you presided over a school desegregation case involving public schools in Jefferson Parish—Dandridge v. Jefferson Parish School Board. Although unavailable on Westlaw, an opinion you wrote in that case was summarized in an article in the New Orleans Times-Picayune: “In March [2008], [Judge] Engelhardt rejected the district’s original consent order, which sought to equalize services, faculty, facilities and student assignments across the parish, representing the combined aims of the School Board and the plaintiffs. His denouncement of the order temporarily relieved a small contingent of magnet school parents who had opposed the boundary changes.” (Jenny Hurwitz, Federal judge takes big role in fight over Jefferson Parish schools, Jan. 24, 2009)

Why did you reject the original consent order in this case, as the Times-Picayune reported?

The original draft Consent Order submitted was overburdened with various matters that served no purpose to, or even prolonged, the goal of reaching unitary status, which is the standard under the law. See Alexander v. Holmes Cnty. Bd. of Educ., 396 U.S. 19 (1969); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (1969). The focus of the Court was to oversee, with the help of the appointed monitor, efforts at desegregation of the Jefferson Parish school system, and to achieve such result as promptly as was practical. The Court did not object to the general principles of the submitted Consent Order, but rather rejected it as unduly cumbersome and not sufficiently tailored to achieve the result as dictated by the jurisprudence.

Please provide the Committee with a copy of the opinion cited in the Times- Picayune report.

There is no written opinion rejecting the draft Consent Order. The Court’s ruling was made orally from the bench after a hearing in open court on March 14, 2008.

It has been reported that Brett Talley, a Deputy Assistant Attorney General in the Office of Legal Policy who is responsible for overseeing federal judicial nominations—and who himself has been nominated to a vacancy on the U.S. District Court for the Middle District of Alabama—did not disclose to the Committee many online posts he had made on public websites.

a.       Did officials at the Department of Justice or the White House discuss with you generally what needed to be disclosed pursuant to Question 12 of the Senate Judiciary Questionnaire? If so, what general instructions were you given, and by whom?

Without disclosing specific advice by any attorneys, it was my understanding that the instructions were to disclose responsive material truthfully and to the best of my ability.

b.       Did Mr. Talley or any other individuals at the Department of Justice or the White House advise you that you did not need to disclose certain material, including material “published only on the Internet,” as required by Question 12A of the Senate Judiciary Questionnaire? If so, please detail what material you were told you did not need to disclose.

It was and remains my understanding that I was required to disclose responsive material, including material “published only on the Internet,” and I have done so truthfully and to the best of my ability.

c.        Have you ever posted commentary—under your own name or a pseudonym— regarding legal, political, or social issues on public websites that you have not already disclosed to the Committee? If so, please provide copies of each post and describe why you did not previously provide it to the Committee.

No.

d.       Once you decided to seek a federal judicial nomination or became aware that you were under consideration for a federal judgeship, have you taken any steps to delete, edit, or restrict access to any statements previously available on the Internet or otherwise available to the public? If so, please provide the Committee with your original comments and indicate what edits were made.

No.

When is it appropriate for judges to consider legislative history in construing a statute?

The Fifth Circuit has held that it is appropriate “to look to . . . legislative history only when the text of the statute is ambiguous.” Rainbow Gun Club, Inc. v. Denbury Onshore, L.L.C., 760 F.3d 405 (5th Cir. 2014).

According to your Senate Questionnaire, you have been a member of the advisory board of the Federalist Society’s New Orleans Chapter since 2002. The Federalist Society’s “About Us” webpage, states that, “[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.” The same page states that the Federalist Society seeks to “reorder[] priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”

Please elaborate on the “form of orthodox liberal ideology which advocates a centralized and uniform society” that the Federalist Society claims dominates law schools.

The cited language from the Federalist Society’s webpage was not written nor specifically adopted by me. I am not aware of who authored the cited language, and am uncertain of the source, factual basis, or other support for such a belief.

As a member of the Federalist Society, explain how exactly the organization seeks to “reorder priorities within the legal system.”

See answer to question 14a.

As a member of the Federalist Society, explain what “traditional values” you understand the organization places a premium on.

See answer to question 14a.

Please describe with particularity the process by which you answered these questions.

I received five (5) questionnaires from Senators on the Senate Judiciary Committee on January 17, 2018. I reviewed each of the questions, personally drafted answers after researching or reviewing matters referenced in such questions, and submitted my responses to the Office of Legal Policy at the Department of Justice. After receiving suggestions from OLP, I made edits I considered appropriate. I then authorized the submission of my response.

Senator Dick Durbin

Written Questions for Kurt Engelhardt, Howard Nielson and Barry Ashe January 17, 2018

For questions with subparts, please answer each subpart separately.

Questions for Kurt Engelhardt

1. When you appeared before this Committee in 2001 for your district court nomination, I asked you in writing whether you agreed with the Supreme Court’s decisions in Griswold, Roe and Casey. You responded as follows:

I agree that the Supreme Court’s decisions in Griswold v. Connecticut, Roe v.Wade, and Planned Parenthood v. Casey are well-settled law as enunciated by the Supreme Court. I further agree that the doctrine of stare decisis counseled the Court against overruling Roe [in] 1989, thus reaffirming the correctness of those decisions. If confirmed as a district court judge, I will, without reservation, apply the law as enunciated by the Supreme Court, in all respects, including the constitutionally-recognized rights set forth in Griswold, Roe and Casey.

a.       Do you still stand by your answer today?

Yes, the Supreme Court’s decisions are binding precedent, and I have taken an oath as a district judge (and if confirmed, will take an oath as a Circuit Judge) to faithfully apply the law as enunciated by the Supreme Court.

b.      Would your answer still apply if you are confirmed as a circuit court judge?

See answer to question 1a.

2. You say in your questionnaire that the Dandrige v. Jefferson Parish School Board case was “concluded successfully in a minimum amount of time.” How successful would you say the effort has been to desegregate the Jefferson Parish school system has been?

My responsibility as the presiding judge was to oversee the Consent Order to achieve unitary status, as that term is defined by the United States Supreme Court and Fifth Circuit. See Alexander v. Holmes Cnty. Bd. of Educ., 396 U.S. 19 (1969); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (1969). In this regard, I believe the effort to desegregate the Jefferson Parish school system by achieving unitary status has been successful.

3. In 2010 you presided over the case Taylor v. Jotun Paints, Inc., in which an employee named Brandi Taylor sued her employer for pregnancy discrimination when she was fired two weeks after giving birth. The employer argued that Ms. Taylor was not qualified for the position from which she was fired because she had been unable to come to work. She wasn’t able to go to work because she was placed on bed rest for her pregnancy by her obstetrician. You agreed with the employer, holding that “the fact that plaintiff’s absences were caused by pregnancy does not dispense with the general requirement that employees must show up for work.” You granted summary judgment for the employer.

Do you believe that Ms. Taylor was treated fairly in this case?

A district judge’s mandate is to judge each case based on the evidence presented and in accordance with controlling legal principles established by Congress and judicial precedent including controlling precedent of the Supreme Court and the applicable circuit court. The result in this case was based upon the provisions of 42 U.S.C. §§ 2000(e)(2)(a) and 2000(e)(k). I applied the analysis set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and binding Fifth Circuit precedent set forth in Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002) and Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998).4. When you ordered a new trial for the police officers who had been convicted for the Danziger Bridge shootings and cover-up, you emphasized the prosecutors’ misconduct which included their posting of anonymous online comments about the

a.       Have you presided over other cases in which you have seen prosecutorial misconduct?

No.

b.      Have you ordered new trials in any other cases on the basis of prosecutorial misconduct? If so, please describe these cases.

See answer to question 4a.

5. During the confirmation process of Justice Gorsuch, special interests contributed millions of dollars in undisclosed dark money to a front organization called the Judicial Crisis Network that ran a comprehensive campaign in support of the nomination. It is likely that many of these secret contributors have an interest in cases before the Supreme Court. I fear this flood of dark money undermines faith in the impartiality of our judges.

The Judicial Crisis Network has also spent money on advertisements supporting a number President Trump’s nominees, including Joan Larsen, David Stras, and others.

a.       Do you want outside groups or special interests to make undisclosed donations to front organizations like the Judicial Crisis Network in support of your nomination? Note that I am not asking whether you have solicited any such donations, I am asking whether you would find such donations to be problematic.

As a sitting United States District Judge and potential Circuit Judge, I do not believe it appropriate for me to comment on political issues or positions of advocacy which may arise in future litigation.

b.      If you learn of any such donations, will you commit to call for the undisclosed donors to make their donations public so that if you are confirmed you can have full information when you make decisions about recusal in cases that these donors may have an interest in?

See answer to question 5a. As a sitting United States District Judge, I am familiar with and would consider the provisions of 28 U.S.C. § 455, the Code of Conduct for United States Judges, and all other considerations bearing on the issue of recusal.

c.       Will you condemn any attempt to make undisclosed donations to the Judicial Crisis Network on behalf of your nomination?

See answer to question 5a.

6.

a.      Is waterboarding torture?

I have not had occasion to study this specific legal question. Generally, under 18 U.S.C. 2340, waterboarding would constitute torture if it were “intended to inflict severe physical or mental pain or suffering” upon a detainee. Waterboarding may also constitute “cruel, inhuman, or degrading treatment” within the meaning of Section 1003 of the Detainee Treatment Act of 2005. Beyond those broad statements, I must refrain from expressing a personal view on a subject of controversy that may result in litigation.

Canon 3(A)(6), Code of Conduct for United States Judges (“A judge should not make public comment on the merits of a matter pending or impending in any court.”).

b.      Is waterboarding cruel, inhuman and degrading treatment?

See answer to question 6a.

c.       Is waterboarding illegal under U.S. law?

See answer to question 6a.

7.       Do you think the American people are well served when judicial nominees decline to answer simple factual questions by claiming that such questions call for the nominee to opine on “political questions”?

As a sitting United States District Judge and a nominee to serve as a Circuit Judge, Canon 5 of the Code of Conduct for United States Judges does not permit me to answer this question.

8.  Was President Trump factually accurate in his claim that 3 to 5 million people voted illegally in the 2016 election?

As a sitting United States District Judge and a nominee to serve as a Circuit Judge, Canon 5 of the Code of Conduct for United States Judges does not permit me to answer this question.

9. In your questionnaire you list yourself as having been a member of the Federalist Society since

a.       Why did you join?

I joined the New Orleans Chapter of the Federalist Society after talking with a few of my new judicial colleagues and friends who were active in the local chapter. I joined because it is an organization of lawyers that encourage and enjoy debate on numerous issues, particularly Constitutional questions, and the speakers/lunch programs offered in New Orleans were intellectually stimulating and inclusive of different viewpoints.

Was it appropriate for President Trump to publicly thank the Federalist Society for helping compile his Supreme Court shortlist? For example, in an interview with Breitbart News’ Steve Bannon on June 13, 2016, Trump said “[w]e’re going to have great judges, conservative, all picked by the Federalist Society.” In a press conference on January 11, 2017, he said his list of Supreme Court candidates came “highly recommended by the Federalist ”

As a sitting United States District Judge and a nominee to serve as a Circuit Judge, Canon 5 of the Code of Conduct for United States Judges does not permit me to answer this question.

c.       Please list each year that you attended the Federalist Society’s annual convention.

I have never attended the Federalist Society’s annual convention.

On November 17, 2017, Attorney General Sessions spoke before the Federalist Society’s convention. At the beginning of his speech, Attorney General Sessions attempted to joke with the crowd about his meetings with Russians. Video of the speech shows that the crowd laughed and applauded at these comments. (See https://www.reuters.com/video/2017/11/17/sessions-makes-russia-joke-at- speech?videoId=373001899) Did you attend this speech, and if so, did you laugh or applaud when Attorney General Sessions attempted to joke about meeting with Russians?

No. See answer to question 9c.

10.

a.       Can a president pardon himself?

I have not had the occasion to research this question. However even had I done so, it would be inappropriate for me, as a sitting United States District Judge, to comment under the Judicial Canons of Ethics.

b.      What answer does an originalist view of the Constitution provide to this question?

See answer to question 10a.

c.       If the original public meaning of the Constitution does not provide a clear answer, to what should a judge look to next?

See answer to question 10a.

11.   In your view, is there any role for empathy when a judge is considering a criminal case– empathy either for the victims of the alleged crime, for the defendant, or for their loved ones?

My oath as a federal judge requires me to “administer justice without respect to person, and do equal rights to the poor and the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me . . . .” Based upon my experience, in discharging that oath, and consistent with it, there are occasions, particularly at the time of sentencing, when empathy for the victims of the alleged crime, for the defendant involved, and/or their loved ones, might be considered.

Judge Kurt Engelhardt – Nominee for the U.S. Court of Appeals for the Fifth Circuit

When Kurt Engelhardt was tapped for the federal bench in 2001, the young conservative looked poised for a swift elevation to the Fifth Circuit, and potentially even further. Unfortunately, no Louisiana vacancy arose during the Bush Presidency and the election of Barack Obama foreclosed further opportunities. With the election of Donald Trump, Engelhardt is getting an opportunity for elevation sixteen years after his initial court appointment.

Background

Kurt Damian Engelhardt was born in New Orleans on April 21, 1960. Engelhardt attended the American Academy of Dramatic Arts and the University of New Orleans before graduating from Louisiana State University in 1982. After graduating, Engelhardt joined Louisiana State University Law School, getting a J.D. in 1985.

After graduating, Engelhardt completed a two-year clerkship with Judge Charles Grisbaum on the Louisiana Fifth Circuit Court of Appeal, and then joined the Metairie office of Little & Metzger, APLC. In 1992, Engelhardt joined Hailey, McNamara, Hall, Larman, & Papale, L.L.P. as an Associate. In 1998, Engelhardt became a Partner at the firm.

On September 4, 2001, Engelhardt, then only 41, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Eastern District of Louisiana vacated by Judge Morey Sear. Engelhardt’s nomination was championed by then-U.S. Representative David Vitter, who was a close friend.[1] Engelhardt was confirmed unanimously by the Senate on December 11, 2001. He became Chief Judge for the Eastern District in 2015 and serves in that capacity today.

History of the Seat

Engelhardt has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit. This seat opened on with Judge Edith Brown Clement’s announcement of her intent to take senior status upon confirmation of her successor. Due to the nature of Clement’s announcement, the vacancy will not open until Engelhardt is confirmed.

In February and March 2017, Engelhardt conducted meetings with all the members of Louisiana’s congressional delegation other than Democratic Representative Cedric Richmond.[2] In May 2017, Engelhardt interviewed with a judicial selection committee set up by Sen. Bill Cassidy (R-LA).[3] In June 2017, Engelhardt interviewed with the White House Counsel’s Office, and was nominated on October 5, 2017.

Political Activity

Engelhardt was active in the Louisiana Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as Vice President of the Jefferson Parish Young Republicans.[4] Engelhardt was particularly active in Vitter’s campaign serving as Chairman of his state legislative campaign committee and as Treasurer during Vitter’s congressional bids.[5] Engelhardt has also donated to Vitter’s campaign, including a $1000 a few months before Engelhardt was nominated to the federal bench.[6]

Legal Career

After his clerkship, Engelhardt’s initial position was with Little & Metzger, APLC, where he worked in commercial litigation, handling contracts, business litigation, and bankruptcy.[7] Among the cases he handled there, Engelhardt represented plaintiffs in a contract dispute who alleged material misrepresentations during the execution of the purchase contract.[8]

In 1992, Engelhardt joined the Hailey McNamara law firm. There, Engelhardt continued a focus on commercial litigation, representing insurance companies, federal contractors, and shipyards. While Engelhardt initially practiced only in the Eastern District of Louisiana, his practice eventually grew to envelop state court matters as well.[9]

Jurisprudence

Engelhardt has served as a judge on the U.S. District Court for the Eastern District of Louisiana for the last sixteen years. In this role, Engelhardt has presided over hundreds or criminal and civil cases, including seventy six that have gone to verdict or judgment.[10] We have summarized some of Engelhardt’s most significant cases below.

Danziger Bridge

In perhaps his most famous case, Engelhardt presided over the trials of New Orleans police officers charged in the “Danziger Bridge Incident”, where officers shot and killed unarmed storm survivors during Hurricane Katrina.[11] In one of the trials, Engelhardt declared a mistrial based on the federal prosecutor’s mentioning “the name of a man who was beaten to death” in an unrelated case.[12] In 2012, Engelhardt sentenced four of the officers to 38 to 65 years in prison for the shootings, while sentencing a fifth officer to five years for covering up the shootings.[13] In sentencing the officers, Engelhardt criticized the prosecution for their reliance on cooperating witnesses and mandatory minimum sentences, indicating that he would likely have offered far lower sentences.[14]

A few months after the sentencing, news broke that key prosecutors in the U.S. Attorney’s office had engaged in a series of anonymous posts at news sites about defendants they were charging.[15] In response to the news, the Danziger defendants moved for a new trial while prosecutors argued that there was no evidence that the anonymous posts had affected the verdicts. In 2013, Engelhardt granted the motion for a new trial, noting:

“Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”[16]

Engelhardt’s ruling drew criticism from the Washington Post Editorial Board, who called his reasoning “unconvincing in the extreme.”[17]

In 2016, Engelhardt accepted guilty pleas from the five Danziger defendants, speaking out at the sentencing against the Department of Justice and the conduct of then Assistant Attorney General Tom Perez, who Engelhardt argued, had covered up prosecutorial misconduct in the case.[18]

British Petroleum (Rainey)

Engelhardt presided over the trial of David Rainey, a vice president at British Petroleum who was charged with lying to investigators in the aftermath of the Deepwater Horizon oil spill.[19] Before trial, Engelhardt dismissed the lead count of the indictment: obstruction of Congress, only to see the dismissal overturned by the Fifth Circuit.[20] Nevertheless, Engelhardt dismissed the count again on the first day of trial.[21]

The jury ultimately acquitted Rainey of the remaining counts of lying to investigators.[22] In dismissing the jury, Engelhardt noted that he “agree[d] with the verdict.”[23]

FEMA Trailer Formaldehyde Litigation

Engelhardt presided over a part of a multidistrict lawsuit brought against FEMA, trailer manufacturers, and contractors for providing trailers contaminated with formaldehyde after Hurricanes Katrina and Rita.[24] Early in the case, Engelhardt held that the hundreds of claims could not be considered a class action due to the uniqueness of each plaintiff’s situation.[25] The claims ultimately ended in a settlement.

Overall Assessment

With sixteen years on the bench, Engelhardt has a long record of jurisprudence demonstrating a conservative judicial philosophy. As such, one can conclude that Engelhardt would maintain a conservative voice on the Fifth Circuit, similar to Judge Clement, whom he would replace.

Depending on your perspective, Engelhardt’s conduct in the Danziger and Rainey trials are either a demonstration of those conservative values, or a deviation from them. Some could argue that, in those cases, Engelhardt stood up to overzealous prosecutors and maintained the rule of law. Others can counter that Engelhardt further denied justice to minorities by going out of his way to accommodate police officers and corporate defendants.

Ultimately, given Engelhardt’s mostly uncontroversial tenure on the District Court, he is likely to move through the confirmation process smoothly, and maintain the conservative majority on the Fifth Circuit.

[1] Stephanie Grace, ‘Fascinating Prospect’ David Vitter, President Obama Might Find Common Ground on New Orleans Judge, The Advocate, July 22, 2015, http://www.theadvocate.com/baton_rouge/opinion/stephanie_grace/article_017dafb2-2692-5a5b-a6fc-2b4763ed5aaf.html.

[2] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 69-70.

[3] See id. at 70.

[4] See id. at 51-52.

[5] Id. at 51.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kurt+engelhardt&order=desc&sort=D (last visited Jan. 7, 2017).

[7] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53.

[8] See Ins. Underwriters Ltd. v. Oxford Mgmt., Inc., No. 87-13771 (La Civ. Dist. Ct.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53-54.

[10] Id. at 17.

[11] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[12] Mistrial for Officer in Katrina Bridge Shootings Inquiry, Charleston Gazette, Jan. 28, 2012.

[13] Bloomberg News, Ex-cops Get Prison for Katrina Slayings, Windsor Star, Apr. 5, 2012.

[14] Campbell Robertson, Five Ex-Officers Sentenced in Katrina Shootings, N.Y. Times, Apr. 5, 2012.

[15] Editorial Desk, Perfidious Prosecutors, N.Y. Times, Dec. 3, 2012.

[16] United States v. Bowen, 969 F. Supp. 2d 546, 627 (E.D. La. 2013).

[17] Editorial Board, Injustice Restored, Wash. Post, Sept. 22, 2013.

[18] Denis Slattery, Interior Boss Ripped in Cop Katrina Slays, N.Y. Daily News, Apr. 24, 2016.

[19] See United States v. Rainey, No. 12-cr-291 (E.D. La.).

[20] Brian M. Heberlig, Congressional Gamesmanship Leads to an Acquittal in Deepwater Horizon Case, United States v. David Rainey: A Case Study, 20 Berkeley J. Crim. L. 260 (Fall 2015). See also United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

[21] See id.

[22] Former BP Executive Found Not Guilty of Making False Statement Over Oil Spill, thespec.com, June 5, 2015.

[23] Id.

[24] See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873 (E.D. La.).

[25] Class Action Denied in FEMA Trailer Suit, Wash. Post, Dec. 30, 2008.