GOP pushback puts Trump judicial nominee at risk

President Trump’s pick for an influential appeals court seat is facing rare pushback from Republican lawmakers and conservative groups.

Their skepticism is raising questions about whether Judge Halil Suleyman Ozerden, nominated to fill a vacancy on the 5th Circuit, will be confirmed even as GOP leaders say they are moving forward with his nomination.

{mosads}Senate Republicans have placed a premium on confirming Trump’s nominees to the circuit courts, setting a record for the pace of approving appeals judges during the first two years of his presidency. Judicial nominations are a top priority for Senate Majority Leader Mitch McConnell (R-Ky.) because the judges have the final word on hundreds of cases each year.

But GOP senators on the Senate Judiciary Committee are raising red flags over Ozerden because of his dismissal of a case involving ObamaCare’s birth control mandate and questions about his conservative credentials.

Sen. John Kennedy (R-La.), who went back and forth with Ozerden during last week’s confirmation hearing, said he hadn’t made a decision on how he will vote but thought the nominee did a “good job” fielding questions from senators.

Sen. Ted Cruz (R-Texas) demurred when asked if he would support Ozerden, who is backed by both of his GOP home-state senators and has ties to acting White House chief of staff Mick Mulvaney.

“I have serious concerns about that nomination, and those concerns were not satisfied at the hearing,” Cruz told The Hill last week.

Sen. Josh Hawley (R-Mo.) said he hasn’t made a decision and wants to sit down with Ozerden.

“I have some more questions to ask him and we’re continuing to review his record very carefully,” Hawley said. “You always want to be very careful, this is a circuit court judgeship we’re talking about.”

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee and adviser to McConnell, similarly sidestepped, saying he and his staff were “looking into some of the concerns that have been raised.”

Ozerden was grilled at his confirmation hearing by GOP committee members, including Cruz, Kennedy and Sen. Marsha Blackburn (Tenn.) about how he would interpret statutes and a dismissal of a case brought by a Mississippi diocese challenging ObamaCare’s birth control mandate. He has argued that the case wasn’t ripe.

After questioning by Sen. Mike Lee (R-Utah), Judiciary Committee Chairman Lindsey Graham (R-S.C.) quipped, “This reminds me why I don’t want to be a judge.”

Sinking a judicial nominee who has already started the confirmation process is a rarity in the Trump era, when Republicans have viewed the courts as a uniting factor that helps motivate the base, and their best shot at having a long-term influence on the direction of the country.

Sen. Tim Scott (R-S.C.) drew fire from conservatives last year for helping spike two nominations — Ryan Bounds to be a circuit judge and Thomas Farr to be a district judge — because of their writings related to race.

But the gathering storm around Ozerden comes after Michigan attorney Michael Bogren withdrew his district court nomination after pushback from conservatives, including Hawley. That fight ruffled feathers within the GOP caucus over concerns about rejecting a nominee because of a position taken on behalf of a client.

However, a significant difference between the two fights is that Bogren came from a state with two Democratic senators. Ozerden would fill a Mississippi seat on the 5th Circuit, meaning Republicans would have to go against GOP Sens. Roger Wicker (Miss.), an adviser to McConnell, and Cindy Hyde-Smith (Miss.) if they want to dismiss Ozerden.

Both Wicker and Hyde-Smith praised Ozerden when they introduced him at the confirmation hearing.

“I’m glad President Trump has nominated another outstanding judicial candidate,” Wicker said. “And I look forward to working with my colleagues to ensure Judge Ozerden is confirmed.”

Concerns from conservative organizations have been brewing around Ozerden for months.

Carrie Severino, the Judicial Crisis Network’s chief counsel and policy director, wrote in a National Review piece last year that Ozerden had not “demonstrated a commitment to textualist methods of statutory interpretation” and that she had some concerns centered around “judicial competence.”

“Mississippi is as red a state as they come. It sure seems like we could do better than Judge Ozerden there,” she added.

The First Liberty Institute, a religious advocacy group, argued that confirming Ozerden would be a “big mistake” and that he’s “not a judicial conservative.” The group added that it did not view Ozerden as “a trustworthy protector of religious liberty.”

{mossecondads}Ozerden’s backers have little room for error in their effort to advance his nomination to the Senate floor for a final confirmation vote. Republicans hold a 12-10 majority on the Judiciary Committee, meaning Trump’s pick could need help from Democrats if some GOP senators defect.

Graham brushed off questions about the viability of Ozerden’s nomination, saying he plans to give the nominee a vote.

“I thought he did a good job,” Graham said. “I’d tend to support him.”

No Democrats on the panel have said they would vote in favor of advancing Ozerden’s nomination to the full Senate, where the GOP’s 53-47 majority means Republicans could afford three defections before needing help from Democrats.

But Sen. Dick Durbin (D-Ill.) told The Hill that he hasn’t ruled out supporting Ozerden in committee.

“Although I have some obvious misgivings about his judicial philosophy, I think the criticism from the Judicial Network is totally unfair,” Durbin said.

Sen. Mazie Hirono (D-Hawaii) highlighted the GOP pushback to Ozerden’s nomination during his hearing last week, saying he seemed “pretty conservative.”

“[But] it’s pretty clear you’re not conservative enough for them,” she added, referring to Republicans on the panel.