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Senate confirms a top Abbott adviser, Andrew Oldham, to the 5th Circuit Court of Appeals

Oldham is the third Texas nominee to be confirmed to the powerful, conservative-leaning appeals court since President Donald Trump took office.

Andrew S. Oldham testifies as the Senate Judiciary Committee holds a hearing to confirm him as United States Circuit Judge for the 5th Circuit, on Capitol Hill in Washington, D.C., April 25, 2018.

Andrew Oldham was confirmed to the federal bench Wednesday by a 50–49 vote, making him the the fourth alumnus of the Texas Attorney General’s Office to join the 5th U.S. Circuit Court of Appeals since President Donald Trump took office. That tally made his confirmation the narrowest of any Texas judicial nominee under Trump.

Oldham currently serves as Republican Gov. Greg Abbott’s top legal adviser.

Born in 1978, Oldham is decades younger than the average judge on the New Orleans-based court, and years younger than most were when they were appointed. He’ll join two Texas judges — former Texas Solicitor General James Ho and former Texas Supreme Court Justice Don Willett — who were confirmed to the powerful, conservative federal appeals court in December.

But Oldham seemed to face more resistance from Senate Democrats than either Willett or Ho, largely because he refused at his April 25 confirmation hearing — as another nominee had weeks earlier — to say whether Brown v. Board of Education, the U.S. Supreme Court’s landmark desegregation case, was correctly decided. Oldham did say the ruling "corrected an egregious legal error,” but he declined to discuss the ruling itself, claiming that doing so would violate judicial ethics codes for nominees.

Oldham’s response sparked outrage among Democrats, who have pointed out that past judicial nominees, including several U.S. Supreme Court justices, have cited no such restriction. Republicans, including U.S. Sen. John Cornyn of Texas, said Oldham made it clear that he supported school desegregation and dismissed the quibble over his response as “a phony, made-up issue.” Debate over Oldham and other nominees who refused to endorse the Brown ruling occupied several hours of discussion in the Senate Judiciary Committee May 17, delaying several nominees’ expected committee approval by a week.

That controversy seems to have been reflected in senators' votes: Oldham’s confirmation was slightly narrower than those of Texas’ other circuit court hopefuls. Ho was confirmed 53-43 and Willett, more narrowly, by a 50-47 vote.

Abbott staffers have had good luck with federal judicial appointments since Trump took office, leading many experts and political observers to speculate that Abbott has been unusually involved in the nomination process. And even nominees outside Texas have ties to the state attorney general's office: Kyle Duncan, a former assistant solicitor general for Texas, was confirmed to a Louisiana seat on the 5th Circuit in April. 

The 5th Circuit, which hears cases from Texas, Louisiana and Mississippi, has long been considered one of the country’s most politically conservative appeals courts. There is a long list of high-profile Texas cases pending before that court, including several voting rights cases, and a legal challenge to the Obama-era Deferred Action for Childhood Arrivals program is expected to land there as well. Oldham would have to recuse himself from any litigation he directly worked on for the state of Texas.

“Over the years, Andy has displayed a keen understanding of the Constitution,” U.S. Sen. Ted Cruz, R-Texas, said on the Senate floor shortly before the vote began. “I’m confident that Andy will not substitute his own policy preferences, his own opinions, for the rule of law.”

Oldham was the 23rd appeals court nominee confirmed under Trump, an impressive pace that has boosted Republicans and worried Democrats. Senate Majority Leader Mitch McConnell, a Kentucky Republican, has called judicial confirmations his “top priority.”

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