Nomination of Andrew Oldham to the U.S. Court of Appeals for the Fifth Circuit Questions for the Record

May 2, 2018

QUESTIONS FROM SENATOR FEINSTEIN

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

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

It is not appropriate for an inferior court to depart from Supreme Court precedent. The Supreme Court has made clear “it is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (“[T]he Court of Appeals should follow the [Supreme Court] case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”).

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

As noted above in the response to Question 1(a), it is not appropriate for a circuit judge to depart from Supreme Court precedent. In certain circumstances, it might be appropriate for a circuit judge to identify gaps in the law or splits between the circuits that the Supreme Court might choose to address through its certiorari jurisdiction. See, e.g., United States v. Serrano-Mercado, 828 F.3d 1, 1-5 (1st Cir. 2016) (Lipez, J., statement regarding denial of en banc review). In all events, however, a circuit judge is bound by Supreme Court precedent.

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

As noted above in the response to Question 1(a), it is the Supreme Court’s prerogative alone to overturn its precedent. See State Oil, 522 U.S. at 20; Rodriguez de Quijas, 490
U.S. at 484. As a nominee to a lower federal court, I cannot properly comment on the Supreme Court’s exercise of a prerogative that it alone holds.

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

Please see my response to Question 1(c).

2. 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))

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

Yes, from the perspective of a lower court, all Supreme Court precedent is superprecedent and is entitled to super-stare decisis. That includes Roe v. Wade and Planned Parenthood v. Casey. If confirmed, I would apply them fully, faithfully, and fairly.

b. Is it settled law?

Yes, please see my response to Question 2(a).

3. 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?

Yes, from the perspective of a lower court, all Supreme Court precedent is settled law. That includes Obergefell v. Hodges. If confirmed, I would apply it fully, faithfully, and fairly.

4. 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.”

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

As a nominee to a lower federal court, I cannot properly provide my personal opinions about particular Supreme Court decisions or dissents from those decisions. That is particularly true for matters that are subject to pending or impending litigation. See Code of Conduct for United States Judges, Canon 3(A)(6).

b. Did Heller leave room for common-sense gun regulation?

In Heller, the Supreme Court noted: “Like most rights, the right secured by the Second Amendment is not unlimited. * * * Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008). The Court “also recognize[d] another important limitation on the right to keep and carry arms”—namely, “that the sorts of weapons protected were those in common use at the time.” Id. at 627 (internal quotation marks omitted).

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

The majority and dissenting opinions in Heller disagreed over the meaning of Supreme Court precedent. Compare Heller, 554 U.S. at 619-26 (majority op.), with id. at 672-79 (Stevens, J., dissenting). As a nominee to a lower federal court, I cannot properly provide my personal views about which opinion correctly interpreted Supreme Court precedent.

5. At your nominations hearing, Senator Cornyn asked you about your representation of the State of Texas in several matters. Senator Cornyn asked you the following: “When you are defending a law that the Texas Legislature has passed and that the Governor has signed, do you necessarily have to agree as a policy matter with that law in order to defend it in court?” You responded: “Not at all, Senator When statutes are duly enacted by the people’s representatives in the Texas Legislature, it falls upon the Attorney General and his lawyers or her lawyers to defend that law. And so I was frequently called upon to defend laws of all different kinds and I did so to the best of my ability as an advocate.”

a. While serving in the Texas Solicitor General’s office and in the Office of the Governor, did you ever conceive of, recommend, or advocate for a particular litigation position or a specific legal argument that the state ultimately adopted?

Yes.

b. Did you ever recommend that the state should not take a particular litigation position or should not make a specific legal argument that the state nevertheless adopted?

Yes.

6. In 2015, while serving as Deputy General Counsel to Governor Abbott, you helped draft an amicus brief in Peruta v. County of San Diego, asking the Court to take a challenge to California’s “good cause” requirement for obtaining a concealed carry permit. The brief argued that the “public safety concerns” the law addressed did not give California “a legal basis to impose special and draconian burdens on Second Amendment rights.” (Amici Curiae Br. for the Governors of Texas et al., Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016), 2015 WL 1956325.)

a. What limitations can a state require for those who wish to obtain a concealed carry permit?

The brief cited above was filed in the Ninth Circuit on behalf of the governors of six states. The brief did not purport to identify which limitations are proper. It argued only that some of California’s requirements conflicted with Supreme Court precedent.

b. Did you advise the Governor or the Attorney General on whether Texas should file a brief in this case?

The brief cited above was filed in the Ninth Circuit on April 30, 2015. At that time, I no longer worked in the Office of the Attorney General, and I therefore did not advise the Attorney General. At the time the brief was filed, I worked in the Office of the Governor. The content of any advice I may have given and to whom it may have been given is protected by the attorney-client privilege. Without violating that privilege, I was instructed to file the above-cited brief on behalf of the governors of six states.

c. Did you advise the Governor or the Attorney General on the specific legal arguments in the brief?

Please see my response to Question 6(b).

7. In 2014, you served as counsel of record on Texas’s motion for a preliminary injunction to prevent the implementation of the Deferred Action for Parental Accountability (DAPA) program and to prevent the expansion of the Deferred Action for Childhood Arrivals (DACA) program. You argued that a preliminary injunction was needed in part because the implementation of DAPA and expansion of DACA would both cause “irreparable injuries” to Texas and other states, in part by “legaliz[ing] the presence of 4 million people.” (Plaintiffs’ Motion for Preliminary Injunction & Memorandum in Support, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), 2014 WL 7497774.)

a. As counsel of record, did you choose which arguments would be included in this preliminary injunction?

The motion for a preliminary injunction and the memorandum in support of that motion were filed on behalf 17 states; after that motion and memorandum were filed, several other states joined the litigation as plaintiffs. Numerous lawyers for the various states contributed to the motion and the materials supporting it in various ways and at various times over the course of the litigation. The specific ways those attorneys contributed to the states’ shared litigation position are protected by several privileges, including the attorney- client privilege.

b. Please identify the “irreparable injuries” to the State of Texas if parents of U.S.- citizen children are legally present in this country.

In the passage of the motion quoted above, the plaintiff states raised several legal arguments to support the second prong of the preliminary injunction standard and the plaintiffs’ standing under Article III of the U.S. Constitution. Those arguments appear on pages 25-28 of the memorandum in support of plaintiffs’ motion for a preliminary injunction, and on pages 42-65 of the reply in support of that motion. Those page ranges also include citations to the preliminary-injunction appendix, which includes additional support for the plaintiff states’ legal arguments.

8. In 2013, as Deputy Solicitor General of Texas, you helped defend HB2, a Texas law that severely restricted women’s access to reproductive healthcare. A Fifth Circuit brief with which you assisted argued in part that the Texas law “ensures that all Texas women seeking abortions will be treated by a physician who can ensure the highest standards of care in case of a medical emergency.” (Appellants’ Brief, Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583 (5th Cir. 2014), 2013 WL 6228857.)

This same law was struck down as unconstitutional by the Supreme Court. The Court’s opinion notes:

We have found nothing in Texas’ record evidence that…the new law advanced Texas’ legitimate interest in protecting women’s health.

We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. (136 S. Ct. 2292, 2311–12 (2016).)

At the time you defended HB2, were you aware of any evidence indicating that the requirement resulted in better outcomes for women’s health? If so, please provide the evidence?

This question implicates two different cases—Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 748 F.3d 583 (5th Cir. 2014), and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

As to the first case, the parties offered competing evidence from numerous sources, including expert reports and publications. A summary of the state’s record evidence (including citations to the record in the form, “USCA5. ”) appears on pages 2-6 of the brief cited above and in Appendix B to that brief, available at 2013 WL 6228857. Based on the state’s arguments and evidence, the Fifth Circuit concluded the state was likely to prevail on the merits, and it therefore stayed the district court’s preliminary injunction of the law. See 734 F.3d 406 (5th Cir. 2013). The U.S. Supreme Court denied a motion to vacate that stay. See 134 S. Ct. 506 (2013). On the merits, the Fifth Circuit again sided with the state, see 748 F.3d 583 (5th Cir. 2014), and as far as I recall, the plaintiffs did not seek certiorari.

By the time the second case was argued at the U.S. Supreme Court (on March 2, 2016) and decided by the U.S. Supreme Court (on June 27, 2016), I had left the Office of the Attorney General and no longer represented the state. The Supreme Court held the statute was unconstitutional, and that decision is final, settled, and authoritative. If confirmed, I would apply the Supreme Court’s precedent fully, faithfully, and fairly, as I would all precedent.

9. In September 2016, you testified before the Texas House Select Committee on State and Federal Power and Responsibility. In discussing Governor Abbott’s proposal for a constitutional convention, you argued that “Washington, D.C. is broken . . . in a particular way — the federal government has abandoned the Constitution . . . and, in doing so, has jeopardized the rule of law.”

Please identify the ways in which “the federal government has abandoned the Constitution” and “jeopardized the rule of law.”

The testimony referenced above is a summary of a 92-page white paper that the Governor authored and published. The Governor’s white paper is entitled “Restoring the Rule of Law with States Leading the Way,” and it is available here: https://gov.texas.gov/uploads/files/ press/Restoring_The_Rule_Of_Law_01082016.pdf (hereinafter “Restoring the Rule of Law”). That white paper—and the testimony the Governor asked me to provide in support of it— articulates the Governor’s views about the horizontal separation of powers (between branches of the federal government) and the vertical separation of powers (between the federal government and the states). An executive summary of the Governor’s views regarding the rule of law appears on pages 2-4 of the white paper.

10. In a January 2016 radio interview, you commented that the U.S. Supreme Court is, “[i]n many ways . . . the most dangerous branch” of government. You argued that the Court “often [fails] to enforce our sacred rights that are in the Constitution while creating ones that are not.”

a. Please provide specific examples of and cases when the Supreme Court has failed “to enforce our sacred rights that are in the Constitution.”

The quotation above refers to part III.B. of the Governor’s white paper, which is referenced and hyperlinked in my response to Question 9. In the Governor’s view, one right that has been under-enforced in the Fifth Amendment right against uncompensated takings. See Restoring the Rule of Law at 45-46 & n.238 (citing and discussing Kelo v. City of New London, 545 U.S. 469 (2005)). I advocated the Governor’s views as his counsel. Of course, if confirmed, I would fully, faithfully, and fairly apply Kelo, as I would all Supreme Court precedent.

b. Please provide specific examples of and cases when the Supreme Court has created rights that are not in the Constitution.

The quotation above refers to part III.B. of the Governor’s white paper, which is referenced and hyperlinked in my response to Question 9. In the Governor’s view, one right that has been over-enforced in the First Amendment right to lie about winning the Congressional Medal of Honor. See Restoring the Rule of Law at 46 & n.242 (citing and discussing United States v. Alvarez, 132 S. Ct. 2537 (2012)). I advocated the Governor’s views as his counsel. Of course, if confirmed, I would fully, faithfully, and fairly apply Alvarez, as I would all Supreme Court precedent.

11. In 2013, as Deputy Solicitor General of Texas, you assisted on an amicus brief submitted by Texas in Shelby County v. Holder. The brief urged the Supreme Court to strike down section 5 of the Voting Rights Act, recounting Texas’ efforts to gain preclearance for a state voter identification law. (Brief of the State of Texas as Amicus Curiae in Support of Petitioner, Shelby County v. Holder, 570 U.S. 529 (2013), 2013 WL 355763.)

Can voter-identification laws impose a significant burden on voting? Can they suppress voter turnout?

Any law that regulates how voters vote can impose burdens. The question in each case is whether those regulations are lawful. On April 27, 2018, the Fifth Circuit upheld Texas’s voter-identification requirements. See Veasey v. Abbott, No. 17-40884 (5th Cir. Apr. 27, 2018). And the court noted that “Plaintiffs neither allude to nor adduce any proof that SB 5 has a discriminatory effect on indigent minority voters.” Slip op. at 16. That litigation is nevertheless ongoing, and I therefore cannot properly comment further on the evidence presented in it. See Code of Conduct for United States Judges, Canon 3(A)(6).

12. On February 22, 2018, when speaking to the Conservative Political Action Conference (CPAC), White House Counsel Don McGahn told the audience about the Administration’s interview process for judicial nominees. He said: “On the judicial piece … one of the things we interview on is their views on administrative law. And what you’re seeing is the President nominating a number of people who have some experience, if not expertise, in dealing with the government, particularly the regulatory apparatus. This is different than judicial selection in past years…”

a. Did anyone in this Administration, including at the White House or the Department of Justice, ever ask you about your views on any issue related to administrative law, including your “views on administrative law”? If so, by whom, what was asked, and what was your response?

As noted in Item 26(a) of my Senate Judiciary Questionnaire, I interviewed with officials from the White House and the Department of Justice more than a year ago, on March 17, 2017. I do not recall everything discussed in that interview. I do recall, however, discussing the nondelegation doctrine, which could be considered an issue related to administrative law. I noted that under the Supreme Court’s nondelegation doctrine, Congress must provide agencies an “intelligible principle” to guide administrative discretion. I noted that since 1935, the Supreme Court has rejected every nondelegation or intelligible principle challenge it has faced—most recently in Whitman v. American Trucking, 531 U.S. 457 (2001). As I testified in my hearing, Whitman is binding Supreme Court precedent. And if confirmed, I would apply it fully, faithfully, and fairly.

b. Since 2016, has anyone with or affiliated with the Federalist Society, the Heritage Foundation, or any other group, asked you about your views on any issue related to administrative law, including your “views on administrative law”? If so, by whom, what was asked, and what was your response?

As noted in Item 12(d) of my Senate Judiciary Questionnaire, I have spoken to audiences affiliated with the Federalist Society. Some of those speeches touched on administrative- law issues, but as I testified before the Committee, each of those speeches was given on behalf of the Governor and advocated the Governor’s views, not my own. As far as I can recall, no one affiliated with the Federalist Society has asked me about my personal views on administrative law. I have not spoken to the Heritage Foundation, nor has anyone from that organization asked me about my views on administrative law (or any other topic, as far as I can recall).

13. In 2017, at an event hosted by the Texas Public Policy Foundation, you argued that “[t]he entire existence of this edifice of administrative law is constitutionally suspect,” because “it is not based in the way the Constitution says that law should be made.”

Why is it “constitutionally suspect” for Congress to pass legislation directing federal agencies to use expertise, data, and/or science in implementation and enforcement of the law?

The quotation above refers to part II.B. of the Governor’s white paper, which is referenced and hyperlinked in my response to Question 9. In the Governor’s view, some federal regulations violate Article I, Section 1 of the Constitution, which vests “[a]ll legislative powers * * * in a Congress of the United States * * * *” As I testified before the Committee, however, if I were confirmed, I would leave behind my role as an advocate, and I would scrupulously apply the terms of the oath set forth in 28 U.S.C. § 453. And I would fully, faithfully, and fairly apply all Supreme Court precedent—including Whitman v. American Trucking, which rejected a nondelegation-doctrine challenge.

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

The Supreme Court has stated that “[t]he starting point in discerning congressional intent is the existing statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). “It is well established that when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Id. (internal quotation marks omitted). Where the text is not plain, however, the Supreme Court has held that extrinsic materials are relevant “to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).

15. At any point during the process that led to your nomination, did you have any discussions with anyone — including but not limited to individuals at the White House, at the Justice Department, or at outside groups — about loyalty to President Trump? If so, please elaborate.

No.

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

I drafted answers to each of these questions. Then I solicited feedback on my answers from members of the Office of Legal Policy at the United States Department of Justice. Then I revised my answers in light of that feedback. My answers to each question are my own.

Judge Andrew ‘Andy’ Oldham – Nominee for the U.S. Court of Appeals for the Fifth Circuit

Young, well-credentialed, and fiercely conservative, Andy Oldham is exactly the type of nominee that Trump promised to name to the federal bench if elected. While Oldham’s involvement in aggressive conservative litigation may have secured him the nomination, it is likely to draw strong opposition from Senate Democrats.

Background

Andrew Stephen Oldham was born in Richmond, VA on December 15, 1978. Oldham received a B.A. with Highest Honors from the University of Virginia in 2001, and then received a Master of Philosophy from the University of Cambridge in 2002.[1] Oldham then attended Harvard Law School, graduating magna cum laude in 2005. (At Harvard Law, one of Oldham’s professors was U.S. Sen. Elizabeth Warren).[2]

After law school, Oldham moved to Washington D.C. to clerk for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. Oldham then moved to the Office of Legal Counsel (OLC), working under acting Assistant Attorney General Stephen Bradbury. In 2008, Oldham secured a clerkship with Justice Samuel Alito on the U.S. Supreme Court.[3]

In 2009, Oldham joined the law firm Kellogg Huber as an Associate. Just three years later, Texas Attorney General Greg Abbott hired Oldham as Deputy Solicitor General, working with fellow judicial nominee Cam Barker.

In 2015, when Abbott was elected to be Texas Governor, Oldham became his Deputy General Counsel.[4] Oldham became the Acting General Counsel in 2017 and the General Counsel in 2018.

History of the Seat

Oldham has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit. This seat opened on April 2, 2018 with Judge Edward Prado’s resignation to be the U.S. Ambassador to Argentina. However, Oldham had been on the White House’s radar much earlier. In 2017, Oldham was a finalist alongside Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney James Ho to fill two Texas vacancies on the Fifth Circuit.[5] Ho and Willett were ultimately nominated on September 28, 2017 and confirmed in December 2017.[6] Oldham remained under consideration, however, and was nominated to the Prado seat on February 15, 2018.

Political Activity

Oldham does not have a long donation history, with his only donation of record being a $500 contribution to Cruz during his presidential campaign in 2016.[7] Additionally, Oldham served as an envelope stuffer for Republican George Allen’s senatorial campaign in 2000.[8]

Oldham has also been a member of the Federalist Society for Law and Public Policy Studies, a conservative legal organization that has produced many Trump nominees, since 2002.[9] He has also been a member of the National Rifle Association since 2015.[10]

Legal Experience

Oldham has served in both advisory positions: at the Office of Legal Counsel and then as Abbott’s General Counsel; and litigation positions: at Kellogg Huber and the Texas Attorney General’s Office. While Oldham has engaged substantively with the law in each of these positions, the bulk of his most controversial (and significant) cases have been handled as Deputy Solicitor General of Texas, a role in which Oldham spearheaded much conservative activist litigation, as well as amicus work handled as Abbott’s Counsel. Below, we highlight some of Oldham’s work on hot-button issues:

DAPA & Immigration

Oldham was lead counsel in challenging the Obama Administration’s Deferred Action for Parental Accountability (DAPA), which deferred action status for deportation purposes for immigrants with children who were American citizens or lawful permanent residents.[11] Oldham drafted the initial complaint and successfully argued for a nationwide injunction before Judge Andrew Hanen.[12]

Abortion and Healthcare

As Deputy Solicitor General of Texas, Oldham managed the defense of Texas laws that critics alleged impeded a woman’s right to have an abortion. Oldham was part of the legal team that successfully persuaded the Fifth Circuit to overturn a trial injunction and find that Texas laws requiring abortion providers to have admitting privileges in local hospitals and restricting medication abortions were constitutional.[13] Oldham was also involved in the defense of the restrictions under an “as-applied challenge” brought by a McAllen Texas abortion clinic.[14] The Supreme Court would eventually find that the provisions created an “undue burden” on a woman’s right to choose.[15]

Oldham was also lead counsel in a challenge to the Affordable Care Act under the “Origination Clause” of the Constitution.[16] Shortly after Oldham left the case, the Fifth Circuit dismissed the challenge for lack of standing.

Habeas Rights

As Deputy Texas Solicitor General, Oldham argued two cases before the Supreme Court, in both cases arguing, unsuccessfully, for the barring of habeas claims raised by the plaintiffs. In the first case, a 5-4 majority of the Supreme Court ruled against Oldham’s position, finding that the ineffective assistance of state habeas counsel can excuse the procedural default of a habeas claim.[17] In the second case, a 6-3 majority held that a habeas inmate did not need to cross-appeal a claim he had lost on the trial level in order to raise it during a defense of claims he had won.[18]

Second Amendment

As Deputy General Counsel for Governor Abbott, Oldham filed an amicus brief on behalf of the Governors of Texas, Louisiana, Maine, Mississippi, Oklahoma, and South Dakota in a Second Amendment challenge to a California law requiring good cause to carry a concealed firearm.[19] Despite Oldham’s and other briefs filed supporting the Second Amendment challenge, the Ninth Circuit held en banc that the Second Amendment does not protect a right to concealed carry.[20]

Campaign Finance

In the Texas Attorney General’s Office, Oldham helped defend Texas’ campaign finance laws against First Amendment challenges brought by a group of nonprofits and general-purpose political committees.[21] The plaintiffs challenged Texas’ ban on corporate contributions for issue-oriented general-purpose committees, as well as requirements that the committees have appointed treasurers, collect ten contributions, and wait sixty days before exceeding $500 in contributions and expenditures.[22] In the challenge defended by Oldham, the Fifth Circuit struck down the ten contribution limit and the sixty day waiting period but upheld the other requirements.[23]

Environmental & Administrative Law

At the Texas Attorney General’s Office, Oldham helped craft the challenge to greenhouse gas rules promulgated by the EPA under the Clean Air Act. Specifically, Oldham focused on the challenge to the EPA “tailoring” rule, which determined which sources emitting air pollutants were required to get permits, and argued that the rule should not be subjected to Chevron deference. The Supreme Court struck down the “tailoring” rule by a 5-4 margin.[24]

Overall Assessment

Oldham, with his impeccable academic credentials, his youth, and future Supreme Court potential, was always going to attract attention in the confirmation process. However, given Oldham’s involvement in conservative impact litigation, his nomination is likely to be deeply controversial.

In particular, Oldham’s role in litigation against DAPA, and EPA rules, as well as his role defending abortion restrictions that were struck down as unconstitutional will be argued to suggest that he is a conservative extremist. Democrats may note that Oldham had an unusually active role in shaping and filing litigation intended to further conservative policy goals and stymie liberal ones. As such, they will argue that Oldham will continue that goal on the bench and be a judicial activist.

Oldham’s supporters, including Cornyn and Cruz, who sit on the Senate Judiciary Committee, will undoubtedly argue that it is inappropriate to impute a lawyer’s positions on behalf of his client to the lawyer himself. However, as Cruz himself voted against Trump nominee Mark Bennett based on stances he took as Hawaii Attorney General, Democrats may decide that what’s sauce for the goose is sauce for the gander. As such, Oldham’s confirmation will ultimately turn on his decisions rather than his qualifications.

[1] Sen. Comm. on the Judiciary, 115th Cong., Andrew Oldham: Questionnaire for Judicial Nominees 1.

[2] Fred Thys, Warren’s Former Students See Her As Anything But ‘Elitist’, WBUR, Apr. 23, 2012, http://legacy.wbur.org/2012/04/23/warren-popular-former-students.

[3] See Oldham, supra n. 1 at 2.

[4] Id.

[5] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.

[6] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=andrew+oldham&cycle=&state=&zip=&employ=&cand= (last visited May 1, 2018).

[8] Oldham, supra n. 1 at 14.

[9] See id. at 5.

[10] Id.

[11] Texas v. United States, 86 F. Supp. 591 (S.D. Tex. 2015) (issuing a preliminary injunction against DAPA).

[12] See id.

[13] Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014).

[14] Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673 (W.D. Tex. 2014).

[15] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[16] Holtz v. Burwell, 784 F.3d 984 (5th Cir. 2015).

[17] Trevino v. Thaler, 133 S. Ct. 1911 (2013).

[18] Jennings v. Stephens, 135 S. Ct. 793 (2015).

[19] Peruta v. Cnty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc).

[20] See id. at 924.

[21] Catholic Leadership Coalition of Texas v. Reisman, et al., 764 F.3d 409 (5th Cir. 2014).

[22] See id. at 414.

[23] Id.

[24] Texas v. EPA; Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

COURT OF APPEALS FOR THE FIFTH CIRCUIT

OPINION, FRIDAY, 15th November, 2019

USA v. Allen Nash, 18-11369

MODERATOR AT FEDERALIST SOCIETY 2019 ANNUAL GALA ON THE RIGHT TO KEEP & BEAR ARMS (SECOND AMENDMENT)

14th November, 2019

The Second Amendment has again become a topic of national discussion in recent years. Mass shooting tragedies of this past year captured the attention of the national media and Americans at large. The Supreme Court in this upcoming term, for the first time in almost a decade, will be confronting the Second Amendment head-on in New York State Rifle & Pistol Association Inc. v. City of New York.  Many will be expecting the Supreme Court to further develop its jurisprudence following the landmark cases of Heller v. District of Columbia, and McDonald v. City of Chicago. This panel will debate these issues and analyze the Second Amendment in this current political climate as well as through the lens of Originalism.

• Prof. Renée Lettow Lerner, Donald Phillip Rothschild Research Professor, George Washington University Law School
• Mr. Jonathan Lowy, Chief Counsel & Vice President, Legal, Brady
• Mr. Mark W. Smith, Founding Partner, Smith Valliere PLLC
• Mr. Jonathan Taylor, Principal, Gupta Wessler PLLC
• Moderator: Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit