April 3, 2018
On Nov. 4, 2013, Greg Abbott filed his 30th lawsuit against President Barack Obama’s administration.
This time, then-Attorney General Abbott was objecting to Obama’s Equal Employment Opportunity Commission, which had issued a rule warning employers not to impose blanket bans on hiring felons. It was “absurd,” Abbott said; it “jeopardized public safety.” And it went beyond what a federal agency should be allowed to do, Abbott’s office argued.
The lawsuit got off to a bad start; a federal district court tossed it out on a Wednesday the next August. But on the following Monday, Abbott turned to a top aide — Andrew Oldham — to revive it. Oldham appealed, and in 2016, the U.S. 5th Circuit Court of Appeals reversed the lower court’s decision. Two years later, the state of Texas would win key pieces of that legal fight.
The case was, in many ways, characteristic of Abbott’s tenure as attorney general. Abbott built his brand on fighting what he called an overly expansive federal government, especially pushing back against liberal policies rolled out by the Democratic Obama administration. And Oldham, a longtime Abbott staffer who seemed to share his boss’s distaste for federal government overreach, often ended up fighting those battles.
Abbott has since moved on to the Governor’s Mansion, and President Donald Trump is pushing policies the governor finds much more palatable. But Texas’ crusade against the federal government continues — and Oldham might soon be in an even better position to help.
In February, Trump named Oldham to the same appeals court that had handed Texas an early win in the felony hiring case — the court that hears many of Texas’ cases against the federal government. If he wins Senate confirmation, Oldham, 39, will be the third Texas judge seated on the 5th Circuit since Trump took office last year. All three are former Abbott employees. And all three are expected to be friendly votes for Texas.
“The Abbott viewpoint will be front and center,” said Hugh Brady, director of the legislative lawyering clinic at the University of Texas School of Law. “That’s the advantage of having somebody like [Oldham] on the court.”
The governor’s influence
When Oldham’s nomination was announced in February, all eyes turned to the Texas Governor’s Mansion.
Experts and observers say Abbott has had an unusual amount of influence on the process of judicial nominations since Trump took office, even though that process is usually led by U.S. senators.
In addition to Oldham, whom Abbott has called “a brilliant mind” and a “trusted legal advisor,” Trump appointed Abbott’s former deputy attorney general Don Willett in September, along with James Ho, the former Texas solicitor general under Abbott.
Oldham reportedly didn’t make the top-two list of either senator. And his appointment meant bypassing U.S. District Judge Reed O’Connor, a former aide to U.S. Sen. John Cornyn expected to be a shoo-in for the nomination because of his judicial experience and ties to the Senate majority whip.
“It appears that the governor has had an inordinate amount of influence on the process — normally, in Texas, it’s been the senators,” Brady said. When he first heard Oldham’s name announced, he wondered, “Where is Cornyn?”
The 5th Circuit has long been one of the country’s most conservative appeals courts. But in recent months, it’s begun to take on a certain brand of Texas-born, Abbott-bred conservatism. Trump has nominated five judges to that court, the most of any federal circuit court. Texas and Kentucky have each had three judges tapped for federal appeals courts — more than any other state.
Oldham will have to recuse himself from any cases he worked on for Abbott, but he will still be able to rule on a wide array of lawsuits affecting Texas.
“Abbott would be gaining a friendly vote on the court,” said prominent legal blogger David Lat. “At a certain point, he will be able to rule on cases involving the Texas governor’s administration, and I suspect he would be very sympathetic to the positions taken by the governor … They have similar mindsets and similar worldviews.”
The “Texas plan”
Oldham came to work for Abbott in 2012, when the governor was already a decade into his famed routine as attorney general: “I go into the office, I sue the federal government and I go home.”
Under Abbott, Oldham worked on some of Texas’ most prominent fights against the federal government — lawsuits about immigration issues and environmental regulations. His work for Texas placed him before the U.S. Supreme Court twice.
“The governor trusted Andy to cover all types of high-profile issues, because of just his exceptional talent,” said Texas Supreme Court Justice Jimmy Blacklock, who worked with Oldham for years under Abbott.
And Oldham was working for Abbott when he launched a long-shot idea: a second convention of the states, the first since 1787, to consider new amendments to the U.S. Constitution. The amendments Abbott proposed would, he said, “restore the rule of law” by reining in federal power and save the country from overreaching federal institutions, most notably the U.S. Supreme Court and the “alphabet soup” of federal agencies governing everything from environmental protection to education.
Oldham was “heavily involved,” Blacklock said, with crafting the plan. And Oldham was also sent out across the state and the country to promote it at law schools and chapters of the conservative legal group the Federalist Society.
“The reason why the administrative state is enraging is not that we disagree with what the EPA does,” Oldham told a group of University of Chicago law students in 2016. “It’s the illegitimacy of it.”
For all Oldham’s insistence that his concern was constitutional, not partisan, Texas has made clear it disagrees with EPA actions, too. That agency was Abbott’s most frequent target after Obama took office in 2009; after Abbott became governor, the state’s new attorney general continued that trend.
Those campaigns against the EPA and other federal agencies earned Abbott praise from the many conservatives skeptical of the “administrative state” — what they see as the overly intrusive body of rules created by federal agencies like the EPA and the Food and Drug Administration. Unelected bureaucrats, they argue, should not have the power to make regulations that look and smell so much like laws.
Critics call efforts like Abbott’s alarming. Agencies have the sustained expertise and the “political nimbleness” to tackle minutiae like air pollution levels, said Texas A&M; University School of Law professor Saurabh Vishnubhakat. And, of course, the rules agencies make are there “to protect people,” said University of Texas Law professor Thomas McGarity.
“People who make these [arguments against federal agencies] want to cripple government and make it impossible for us to actually have the clean air and clean water that we want,” said Caroline Fredrickson, president of the liberal-leaning American Constitution Society.
“Get my ducks in a row”
Long before Oldham moved to Texas, long before Abbott was elected governor, the young lawyer was already showing an interest in the “administrative state.” There’s a strong clue, a former colleague said, in his clerkship on the U.S. Court of Appeals for the D.C. Circuit, the federal appeals court that hears the most challenges to federal agency decisions.
“It attracts a certain kind of young attorney because of the court’s docket,” explained Enrique Armijo, an Elon Law School professor who clerked with Oldham on that court about a decade ago. And among the judges on that court, Oldham’s boss, David Sentelle, was “probably one of the ones that was most skeptical of agencies,” Armijo said.
Oldham also worked at the U.S. Department of Justice and clerked for Samuel Alito, who many consider the most conservative justice on the U.S. Supreme Court. In private practice at Kellogg, Hansen, Todd, Figel & Frederick — a boutique legal firm that works with many telecommunications clients regulated by a federal agency — Oldham showed particular interest in administrative law, partner Michael Kellogg said.
In 2007, years before he would join Abbott’s office and begin fighting the administrative state on the governor’s behalf, Oldham wrote a law review article arguing that federal courts have overstepped in interpreting an antitrust statute. Many experts see in that article an indication that Oldham feels similarly skeptical about federal agencies — whose power he railed against while advocating for Abbott’s convention of states.
That skepticism, of course, is hardly rare among conservatives. But Oldham’s view — that, as he said while advocating Abbott’s Texas Plan, “it is the entire existence of this edifice of administrative law that’s constitutionally suspect” — goes further than most conservatives would, experts said.
Oldham’s resume, many have observed, is strikingly similar to that of U.S. Supreme Court Justice Neil Gorsuch. Trump’s Supreme Court pick is known for challenging the power of federal agencies; Oldham, experts said, looks poised to do the same. And some have speculated that Oldham, like Gorsuch, could ascend higher even than a federal appeals court.
Even as a powerful appeals court judge, Oldham wouldn’t have complete latitude to rewrite federal laws. But his opinions would be binding within his court’s jurisdiction of Texas, Louisiana and Mississippi, and they could wind their way to the U.S. Supreme Court.
The 5th Circuit was “already a good court, now it’s a better court” for cases challenging federal power, said Lat, the legal blogger. And Oldham’s appointment might itself make them sprout up more often. Experts said his nomination — coupled with the recent confirmation of two other soundly conservative Texas judges to the 5th Circuit — may suggest to some activist attorneys that now is the time for “test cases and trials” in the 5th Circuit, appellate lawyer David Coale said.
“What this signals is, to somebody like [a conservative litigator]: Now’s the time to start finding your test case… We’re getting a critical mass of people from Texas, you need to start thinking, ‘It’s time to get my ducks in a row,’” Brady said. “Courts can only rule on controversies that are brought to them. Now’s the time to go find your controversy.”
In the 5th Circuit, those controversies would likely challenge liberal-leaning regulations from Democratic presidents. Lawyers could challenge a particularly onerous EPA regulation, or a Title IX guideline like one issued by the Obama administration advising states that the sex-based discrimination protection should defend the rights of transgender students.
“If you get [Oldham] on your panel… and you’re trying to attack something an agency is doing — especially if you think they’re getting out of bounds of their authority — he may be a good judge for you,” said McGarity, the UT Law professor.
There are fewer regulations that red states want to challenge under Trump, who has famously sought to undercut federal agencies. It’ll be interesting, McGarity said, to watch “Trump judges overseeing Trump agencies.”
But federal judges’ careers are longer than presidents’, and Oldham, if confirmed, will continue to have influence long after Trump leaves, experts said.
“I think they’re setting this up for the long haul, so the judiciary could rein in what is perceived as an activist administration,” Brady said. “That’s beneficial to states like Texas… [which] believes the federal government overreaches more than it underreaches.”
Few have championed that argument more than Abbott, who celebrated when Oldham was nominated.
“This is an excellent choice of a strict construction constitutionalist,” Abbott said at the time. “I think he’s even better than Gorsuch.”
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/04/03/greg-abbott-andrew-oldham-fifth-circuit-judicial-appointees/.
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