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At confirmation hearing, federal judicial nominee defends impartiality

Andrew Oldham, a nominee for an influential federal appeals court, asserted during a U.S. Senate committee hearing Wednesday that the positions he took on behalf of Texas would not influence his work as a judge.

Andrew Oldham testifies at a confirmation hearing before the U.S. Senate Judiciary Committee on April 25, 2018.

As he sat before a bipartisan panel of U.S. senators on Wednesday, judicial hopeful Andrew Oldham sought to distance himself from the policy positions of the Texas Republican he has served for six years.

Now a nominee to the 5th U.S. Circuit Court of Appeals — the powerful, conservative court that hears cases from Texas, Mississippi and Louisiana — Oldham has worked as a legal adviser to Gov. Greg Abbott since Abbott’s days as Texas’ attorney general. In that role, Oldham has defended Texas’ positions on issues ranging from abortion to immigration, and even advocated alongside Abbott for a convention of states to “restore the rule of law.”

But in response to senators — most of whom were Democrats — who during Wednesday's Senate Judiciary Committee hearing pushed him on his “zealous defense” of Texas’ sometimes controversial positions, Oldham said he had merely been “advocating for a client.”

“I would leave behind all of those litigating positions, all of those advocacy positions, and swear an oath to simply apply the law as an impartial jurist,” Oldham pledged Wednesday.

Helping him assert that independence were both of Texas’ U.S. senators, Republicans Ted Cruz and John Cornyn, who gave Oldham several opportunities to explain that the positions he defended as a lawyer would not bleed into his rulings as a judge. Cornyn offered Oldham the chance to correct “some of the press coverage and comments” from “some people who are confused” about the distinction between the two roles.

Perhaps the most heated confrontation came when U.S. Sen. Sheldon Whitehouse, a Rhode Island Democrat, pressed Oldham on a 2016 speech in which the nominee called administrative agencies like the Internal Revenue Service and the Environmental Protection Agency “fundamentally illegitimate” and “enraging.”

“The comments you’re quoting came from a speech I was making on behalf of the governor,” Oldham said. “He was my client, and I was advocating his position.”

“Come on. Don’t kid me. You used a word that was highly personal — you said it was ‘enraging,’” Whitehouse shot back. Then he posed his question again, pausing between each word: “Were you enraged?”

“I was frustrated — on behalf of my client — for a series of litigation matters,” Oldham acknowledged. A minute later he re-emphasized: “My perspective as an advocate has no bearing on my perspective as a jurist.”

Oldham is the Trump administration’s fifth nominee to what many consider the country’s most conservative appeals court, and if confirmed, he will be the third Texan to join the court under the administration. No other federal appeals court has had as many nominees, and no other state has had more appeals court nominees. On Tuesday, the Senate confirmed Kyle Duncan — who worked in the Texas Solicitor General's Office — to a Louisiana seat on the 5th Circuit. 

Oldham, long rumored to be on a shortlist for the court, was passed over last year when Trump nominated Texans Don Willett and James Ho, both of whom have since been confirmed. Trump named Oldham in February after opening a spot on the bench by appointing Edward Prado to be U.S. ambassador to Argentina.

Oldham — whose qualifications include clerkships on the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court, as well as time in the U.S. Department of Justice — has drawn the expected opposition of liberal groups like the Alliance for Justice and the Leadership Conference on Civil and Human Rights, which take issue with his work on issues like abortion, immigration and environmental regulation. Oldham's detractors say he has, through both his advocacy for Texas and his personal writings and statements, evinced a hostility toward the so-called “administrative state” — the body of regulations put in place by federal agencies, which many conservatives view as overreach.

U.S. Sen. Kamala Harris, a California Democrat, ticked down a list of controversial measures raised in Texas in recent years, asking Oldham what role he had played in formulating legislation.

Oldham said he recalled working on two particularly high-profile issues: a measure that would have restricted transgender Texans’ access to certain public facilities and an anti-“sanctuary cities” law winding its way through the courts.

Oldham deflected some of the committee’s toughest questions, citing judicial ethics rules that he said prevent him from weighing in on pending legal matters or established U.S. Supreme Court decisions. That justification helped him skirt questions about voting rights discrimination and the issue of implicit racial bias.

After questioning Oldham, the committee weighed the appointments of Michael Truncale and Alan Albright, who have been nominated to become district judges in the Eastern and Western districts of Texas, respectively. Albright is an Austin lawyer and former U.S. magistrate judge. Truncale, an attorney based in Beaumont, ran unsuccessfully for Congress in 2012.

The committee is expected to vote on the nominees in the coming weeks. All three require confirmation from the full U.S. Senate.

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