Texas lawyer up for federal judge job takes narrow view on 1st Amendment
Andrew Oldham, President Donald Trump’s nominee to fill a vacancy on the federal appeals court covering Texas, Louisiana, and Mississippi, is a critic of the expansive view of First Amendment free speech rights taken by the 20th and 21st century U.S. Supreme Court.
Last month Oldham cleared the Senate Judiciary Committee with a favorable recommendation for confirmation to the U.S. Court of Appeals for the Fifth Circuit. He had been named in February by President Trump to replace Judge Edward Prado, who has become the new U.S. ambassador to Argentina.
Oldham currently serves as General Counsel to Texas Governor Greg Abbott. He has also worked as a clerk for a U.S. Supreme Court Justice and a U.S. Court of Appeals justice.
The prospective judge elaborated on his judicial philosophy in a speech at the University of Chicago Law School in May 2016. He shared views on the First Amendment, which is about the free exercise of religion and speech.
In his 2016 speech, Oldham spoke on behalf of Governor Greg Abbott, his boss, who had launched an initiative calling for a convention of states to change or clarify elements of the U.S. Constitution.
“We have some constitutional reforms that we are proposing for the judicial branch — again, what we’re focused on are things… that we think are deeply unprincipled or illegitimate,” said Oldham.
“When we think about the Court’s modern First Amendment jurisprudence there are some incredibly eyebrow-raising cases,” he added. In particular, Oldham took issue with the decision in United States v. Alvarez (2012), which struck down the Stolen Valor Act, ruling in favor of a defendant who had falsely claimed to have been awarded the Congressional Medal of Honor.
“They’ve also said that it (the First Amendment) protects videos of crushing little kittens for sexual gratification, and pole dancing, and horrible hateful speech at Marines’ funerals in Virginia, violent video games…”
Oldham noted that he believed there are “swathes of Supreme Court jurisprudence that are… fundamentally illegitimate.”
The Texas lawyer’s criticisms relate to the Supreme Court’s interpretations of the First Amendment, which reads, “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“Swathes of Supreme Court jurisprudence are fundamentally illegitimate.”
By Oldham’s interpretation, this text does not guarantee a citizen’s right to “crush little kittens,” “pole dancing,” or protesting at soldiers’ funerals, per his 2016 remarks. Oldham argued, for instance, that the ruling in United States v. Alvarez, if upheld, would call into question other federal laws like securities regulations, which prohibit officials of publicly traded companies from making false statements to investors.
Senator Dianne Feinstein questioned Oldham about his views on the Supreme Court and U.S. v. Alvarez in particular in a question-and-answer document released by the judiciary committee prior last month. “Please provide specific examples of and cases when the Supreme Court has created rights that are not in the Constitution,” she queried.
Oldham’s answer reads, in part, “In the Governor’s view, one right that has been over-enforced in the First Amendment right to lie about winning the Congressional Medal of Honor… I advocated the Governor’s views as his counsel. Of course, if confirmed, I would fully, faithfully, and fairly apply Alvarez, as I would all Supreme Court precedent.”
Views on administrative law
Senate Democrats raised concerns with other commends made by Oldham in the same 2016 speech, in which he expressed a narrow view of federal agencies’ right to make regulations and the powers of a president to legislate using Executive Orders.
“I have particular things that I think are illegitimate in the way that we conduct modern American law… we have completely deviated from the way the Constitution says certain things should be done, and my favorite example is lawmaking,” he said. “What we have today is this alphabet soup of administrative agencies that dominate modern American life. By one estimate 90% of law that comes out of Washington, DC, comes from administrative agencies — it doesn’t come from Congress, it comes from the CFR, the Code of Federal Regulations.”
“That is fundamentally illegitimate. And the reason I argue it is illegitimate is that it’s not based in the way the Constitution says law should be made. It’s not that I disagree with a particular department of labor regulation or a particular IRS regulation, it is the entire existence of this edifice of administrative law is constitutionally suspect.”
U.S. Sen. Sheldon Whitehouse, a Rhode Island Democrat, questioned Oldham over these remarks, saying he had used emotionally charged language such as “fundamentally illegitimate” and “enraging.”
On the other hand, the U.S. two senators representing Texas have praised Oldham’s record and released a statement last week celebrating his approval by the Judiciary Committee. Sen. Ted Cruz sad that Oldham “represents the best of our State’s legal community.”
If confirmed in the full Senate, Andrew Oldham would become one of 17 judges on the U.S. Appeals Court covering Texas, which is based in New Orleans. The court is one of 13 federal appellate courts, which, do not retry cases of the U.S. District Courts but instead review the procedures and the decisions of trial courts to make sure that the proceedings were fair and that the proper law was applied correctly.
