Report: Andrew Oldham

His nomination is entirely in keeping with the Trump Administration’s stated goal of appointing judges who will assist in tearing down health, safety and consumer protections and the federal agencies that create and enforce them.


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From the Daily Beast:


Andrew Oldham made his mark as general counsel to Texas Governor Greg Abbott. In that role, he advanced an effort to amend the U.S. Constitution to dismantle the Department of Labor, the EPA, and other administrative agencies. He also believes that all antitrust law is unconstitutional. And during his confirmation hearings, Oldham refused to agree that Brown v. Board of Education was correctly decided. In one exchange, Senator Kamala Harris asked Oldham four times whether discrimination in voting even exists—something multiple courts have acknowledged in recent years. He refused to answer.


Oldham will now have the opportunity to implement his radical constitutional views on one of the highest courts in the land.


From the Alliance for Justice:


The environment. Oldham repeatedly helped Texas join then-Oklahoma Attorney General Scott Pruitt in suing the Environmental Protection Agency (EPA) and undermining efforts to address climate change. Oldham even questioned the legitimacy of the EPA, saying: “One of the reasons why the administrative state is enraging, is not that you disagree with what the EPA does, although, I do disagree with a lot of what it does. That’s not the thing that makes it enraging. It’s the illegitimacy of it,” and “no one ever pauses to wonder about whether the entire edifice of both the Clean Power Plan and the agency that promulgated it is just utterly and fundamentally illegitimate.”


Workers and consumers. Oldham has questioned the legitimacy of safeguards protecting the public and consumers. Oldham was reportedly “heavily involved” in the “Texas Plan” to radically amend the U. S. Constitution and gut the enforcement of modern consumer, public health, and workplace protections: “What’s driving it from our perspective, from the Governor’s perspective and mine . . . is much deeper than that.” “It’s not that I disagree with a particular Department of Labor regulation or a particular IRS regulation. It is the entire existence of this edifice of administrative law is constitutionally suspect.”


Dreamers and their parents. Oldham was the architect of Texas’s strategy to block the expansion of DACA to additional Dreamers and parents of U.S citizens or green card holders, across the country.


Gun safety. Oldham represented Texas in its fight against a California concealed carry law. He also argued that Texas concealed carry license holders should be able to carry firearms into some government buildings.


From the Alliance for Justice:


WASHINGTON, D.C., April 25, 2018 – Following today’s confirmation hearing for Donald Trump’s latest nominee for the U.S. Court of Appeals for the Fifth Circuit, Andrew Oldham, AFJ President Nan Aron released the following statement:


“Incredibly, another Trump judicial nominee, Andrew Oldham, refused today to give a yes or no answer when asked if Brown v. Board of Education was correctly decided, just days after Wendy Vitter caused outrage by refusing to answer the same question. Oldham also refused to answer repeated questions about whether he believes voting discrimination still exists in the U.S., and was evasive about his role in Texas’s scheme to undermine DACA, whether he stands by his past remarks disparaging federal health and safety agencies, and whether he believes implicit racial bias exists or affects incarceration rates. This is stunning. Nominees to the federal bench have a constitutional obligation to demonstrate that they will safeguard our rights and liberties. With Oldham’s evasive responses and non-answers today, he failed to satisfy that requirement.”

Detailed background report on Andrew Oldham from the Alliance for Justice is here.

From the People for the American Way:


Trump Fifth Circuit judges Andy Oldham, Kurt Engelhardt and James Ho cast the deciding votes in January 2020 in Doe v. Mckesson to deny a full court rehearing of a ruling that allowed a police officer to sue a Black Lives Matter organizer for an injury he sustained during a protest. The ruling violates important Supreme Court precedent on protesters’ First Amendment rights and threatens to subject them to the cost and other burdens of meritless lawsuits intended primarily to intimidate civil rights activists and other protesters.


As explained in a previous PFAW blog post, the suit against DeRay Mckesson arose when a Baton Rouge police officer was hit and injured by a rock thrown by an anonymous person during a protest held on a public highway. The officer anonymously filed a lawsuit for damages against Mckesson and the Black Lives Matter movement.


The federal district judge dismissed the case. He explained that under controlling Supreme Court precedent, in order to hold a protest organizer or group liable for violence that occurs during a protest, a court must find specific facts to avoid infringing on protesters’ First Amendment rights. The ruling  established that protest groups or leaders must use words that are “likely to incite imminent lawless action,” or give someone “specific instructions to carry out violent acts or threats” or have “authorized, directed, or ratified specific tortious activity.” Since Doe’s complaint did not contend that Mckesson had done any of these things, the judge dismissed it.


A three-judge panel of the Fifth Circuit reversed, however, and ruled that Mckesson could be held liable if  the police officer could prove that Mckesson “negligently” organized a protest that he “should have known” would lead to violence. Trump judge Don Willett initially joined the ruling, but later recognized that Mckesson had a “First Amendment defense” and dissented in a revised opinion. Willett stated, in accordance with significant criticism of the original ruling, that the negligence standard was wrong, and that even “raucous public protest” is protected from liability by the First Amendment “unless clearly intended to, and likely to spark, immediate violence.”



From the People for the American Way:


Trump 5th Circuit judge Andrew Oldham cast the deciding vote on January 8, 2020 to stay a district court injunction against President Trump’s order to spend $3.6 billion on his border wall without approval from Congress. The dissenting judge pointed out that the majority also refused to give the case expedited treatment, meaning that Trump will be able to continue to spend the money for months or more without a final court decision on the claims that the spending is illegal.  The case is El Paso County, Texas v. Trump.


In December, a Texas federal judge issued a nationwide injunction preventing Trump from spending the $3.6 billion on his southern border wall. The case was brought by El Paso County and others.


In a brief, unsigned Jan. 8 order, however, Judge Oldham cast the deciding vote to stay the lower court injunction pending appeal and to deny a request to expedite the appeal. As Judge Stephen Higginson explained in dissent, without “focused panel deliberation” and oral argument, he could not agree that the government had shown “either a likelihood of success or irreparable harm,” as is required to grant such a stay. In addition, he criticized the majority for failing even to grant expedited treatment for “prompt consideration” of the “sensitive and complex legal questions” in the case.


As a result of Judge Oldham’s deciding vote, President Trump will be able to spend the $3.6 billion on the border wall for months no matter how the court of appeals eventually rules, despite the district court’s injunction against him.


From the People For The American Way:


In the state’s lawsuit to shut down President Obama’s Deferred Action for Parental Accountability (DAPA) program, Oldham was part of a legal team that engaged in a disturbing political misuse of the judicial system: maneuvering to get the case before a judge who could not only be relied upon to employ a very conservative legal philosophy in deciding the case but also to inject his personal right-wing anti-immigration political ideology into his decisions. Specifically, Oldham and his team filed the lawsuit in the Brownsville division of the Southern District of Texas, where there were only two active judges, one of whom had (among other things) made profoundly inappropriate and political statements about immigration from the bench. That was Judge Andrew Hanen.


Therefore, although Judge Hanen’s fitness for office is not before the Senate, his actions are relevant to assessing the nominee’s fitness. After sentencing the defendant in a 2013 human trafficking prosecution, Hanen released a wholly unnecessary court opinion simply to issue a jeremiad against federal immigration laws and policies.i An undocumented immigrant had hired the defendant to smuggle her ten year-old daughter into the country, but he was caught before mother and daughter could be reunited. Pursuant to policy, the federal government did not keep the girl from her mother. They prosecuted the smuggler, but did not press charges against the mother. Although this exercise of prosecutorial discretion was not before Hanen, he issued an order exploding with rage against it. As Hanen stated:


The DHS, instead of enforcing our border security laws, actually assisted the criminal conspiracy in achieving its illegal goals. …

This is the fourth case with the same factual situation this Court has had in as many weeks. In all of the cases, human traffickers who smuggled minor children were apprehended short of delivering the children to their ultimate destination. In all cases, a parent, if not both parents, of the children was in this country illegally. That parent initiated the conspiracy to smuggle the minors into the country illegally. He or she also funded the conspiracy. In each case, the DHS completed the criminal conspiracy, instead of enforcing the laws of the United States, by delivering the minors to the custody of the parent illegally living in the United States. … The DHS has simply chosen not to enforce the United States’ border security laws.

[T]his policy lowers the morale of those law enforcement agents on the front line here on the border. These men and women, with no small risk to their own safety, do their best to enforce our laws and protect the citizens of the United States. It seems shameful that some policymaker in their agency institutes a course of inaction that negates their efforts. It has to be frustrating to those that are actually doing the work of protecting Americans when those efforts are thwarted by a policy that supports the lawbreakers.

This Court is not unsympathetic to any individual or entity taking action that is in the best interests of a minor child; nor is it this Court’s goal to divide or separate family members. But the decision to separate [the mother] from [her daughter] was made years ago, and it was made by [the mother]. She purposefully chose this course of action. Her decision to smuggle the child across the border, even if motivated by the best of motives, is not an excuse for the United States Government to further a criminal conspiracy, and by doing so, encourage others to break the law and endanger additional children.

While such a tirade against federal policy might be expected on the campaign trail or in a congressional floor speech, in no way could it be considered appropriate coming from a federal judge in an official court document. But for anti-immigrant advocates, it was an ideological signal they could not possibly have misread. So when Andrew Oldham and his team decided to challenge DAPA, they could be confident that Hanen would be hostile to federal immigration efforts and to immigrants. Their effort succeeded when the case was assigned to Judge Hanen, who in fact issued a nationwide injunction to prevent DAPA from going into effect.ii


By itself, forum shopping is not at all disqualifying for a lawyer who seeks the bench. Advocates often forum-shop as part of their zealous representation of their clients. Judges differ in temperament, in their approaches to legal questions, and in their ability to preside over a case efficiently and effectively. But deliberately maneuvering to get their case before a judge who would engage in improper conduct is itself improper, and it strongly suggests that Oldham considers such judicial conduct acceptable.



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