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Republican senators may sink another Trump judicial nominee

POLITICO logo POLITICO 7/16/2019 By Marianne LeVine
a man wearing glasses: “I think the concerns that I have are the same concerns that maybe some of the other people have and it’s more focused on the Obamacare birth control mandate,” said Sen. Joni Ernst, one of two Republican women on the Senate Judiciary Committee. “I have issues with that.” © Pete Marovich/Getty Images “I think the concerns that I have are the same concerns that maybe some of the other people have and it’s more focused on the Obamacare birth control mandate,” said Sen. Joni Ernst, one of two Republican women on the Senate Judiciary Committee. “I have issues with that.”

President Donald Trump’s nominee to a key appellate court could be in jeopardy over Republican concerns about his judicial record and potential issues with his FBI background check.

The Senate Judiciary Committee will hold a confirmation hearing Wednesday for Halil Suleyman “Sul” Ozerden, a close friend of White House Chief of Staff Mick Mulvaney, to the Fifth Circuit Court of Appeals. But his ability to get through the Senate is already in question.

Republican senators are receiving individual briefings from judiciary staff about his FBI background investigation, which typically occurs when there's a potential problem with the nominee, according to several Senate sources who declined to discuss the matter on the record or in detail. It’s unclear what exactly in his background check could be problematic.

The Republican Senate has made approving Trump’s judges a major priority ahead of 2020. Any roadblocks in that effort highlight divisions within the party and undercut one of Trump's top campaign talking points.

Senators have also raised broader questions about his judicial philosophy and his prior rulings. Some senators are scrutinizing a 2012 opinion he authored as a federal judge in Mississippi centered on the Affordable Care Act’s contraceptive mandate.

The case was brought forward by the Catholic Diocese of Biloxi and challenged the Affordable Care Act’s requirement that insurance plans cover contraception. Ozerden granted the Obama administration’s motion to dismiss the case in December 2012, noting that the lawsuit was not ripe for a formal decision because the regulation was in the process of getting amended.

“I think the concerns that I have are the same concerns that maybe some of the other people have and it’s more focused on the Obamacare birth control mandate,” said Sen. Joni Ernst (R-Iowa), one of two Republican women on the Senate Judiciary Committee. “I have issues with that.”

Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee whose state is included in the Fifth Circuit Court of Appeals, said that he is “aware of the controversy” surrounding the Obamacare case but needs to learn more about the nominee. Sen. Thom Tillis (R-N.C.), another member of the Judiciary panel, said that his office is taking a look at the “net effect” of the ruling, as is Sen. Josh Hawley (R-Mo.), who described the case as “certainly something I want to look at.”

Sen. Ted Cruz (R-Texas) also said in a brief interview that he too had concerns about the Obamacare ruling.

Sen. John Kennedy (R-La.), who spoke with Ozerden about his judicial record over the weekend, responded “I don’t know” when asked if the Senate will confirm Ozerden.

Trump nominated Ozerden in June at Mulvaney’s urging. Both Ozerden and Mulvaney attended Georgetown, and the acting White House chief of staff was even a groomsman at his wedding. A spokesperson for Mulvaney did not respond to a request for comment.

Ozerden also has strong backing from Republican Roger Wicker of Mississippi, his home-state senator.

I do fully support him, I think he is an excellent choice,” Wicker reiterated Tuesday. “I think he would be a solid member of the conservative majority and the conservative movement.” Wicker added that he remained confident Ozerden would be confirmed.

Former Senate Majority Leader Trent Lott, who said he recommended Ozerden to serve on the federal judiciary with the late Mississippi Sen. Thad Cochran, also praised Ozerden’s credentials.

“He’s an outstanding person, got a good education,” Lott said, describing Ozerden as “highly respected in the federal judiciary.” Lott added that nothing in Ozerden’s record is of concern, but conceded that “you could comb through all those decisions and find some where you’d say ‘why this, why that?’”

POLITICO reported in June that Mulvaney pushed then-White House Counsel Don McGahn to nominate Ozerden despite concerns over the rate at which his opinions have been overturned on appeal, mostly from judges praised by conservatives.

Conservative judicial groups also have not been friendly to Ozerden’s nomination. Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which has spent millions supporting Trump’s nominees, wrote in National Review last year when Ozerden’s name was discussed that “Mississippi is as red a state as they come. It sure seems like we could do better than Judge Ozerden there.”

Ozerden is the latest White House judicial nominee to face scrutiny from Senate Republicans. Although most have sailed through the GOP-controlled Senate, which has made confirming Trump’s nominees a top priority, some have run into obstacles. Most recently, Michael Bogren, who Trump nominated to serve on a federal district court in Michigan, withdrew his nomination amid opposition from Senate Republicans over a brief he wrote while defending the City of East Lansing.

Burgess Everett contributed to this report.

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