For readers who don’t know me, that post title….it’s called sarcasm. I posted many times that Mississippi lost this seat.

I was wrong that Mississippi would lose the seat. But I was not making up what I posted. I heard more specific information I didn’t post that backed it up. I believe Texans were after the seat and sponsored unfair attacks on Mississippi candidates, including, but not limited to, Judge Ozerden.

I’m proud of Senators Wicker and Hyde-Smith for getting this nomination approved by the President. I’m sure it involved a lot of behind the scenes politicking.

A nomination is not a confirmation, so I’m not going to count it as one. The Senators now have to secure the confirmation.

But the prospects of a 5th Circuit Judge from Gulfport is a big deal for my hometown–a much bigger deal than people not in the legal profession probably realize.

Best I can tell, Judge Ozerden would be the first 5th Circuit Judge from the Coast. That’s a big deal for a region of the state that often feels looked down upon by folks north of, what? Hattiesburg?

It’s a fitting reward for someone with the education and credentials that Mississippi usually loses in ‘brain drain.’

It’s been known for a while that Mississippi’s Senate delegation submitted U.S. District Judge Sul Ozerden’s name to the White House to fill the seat on the 5th Circuit Court of Appeals vacated by Judge Grady Jolly. But the pick has run into trouble from an unlikely source: the right. Specifically, the alt-right.

Over the summer, the white nationalist cite Breitbart ran hit pieces on Judge Ozerden. Here is the latest. If you want to be disgusted, look at the comments of these editorials. For many on the right, Judge Ozerden’s problem is his name and the fact his father was from Turkey and Muslim.

By the way, Briebart doesn’t have to publish those Anti-American, racist, xenophobic comments. They choose to. Think about that. And think about the mindset of those Briebart commenters. The United States may have been founded based on freedom of religion, but to those guys, being Episcopalian is not pure enough.

That the son of a Turkish immigrant can serve on a federal court of appeals is what makes America great. If that doesn’t ring true to you, you’re just going to have to trust me. In Mississippi, we know something about being on the wrong side of history. That’s you–right now.

So what did they gin up to hit Judge Ozerden with? Not much.

Their big find was Judge Ozerden’s 2012 opinion in Catholic Diocese of Biloxi v. Sebelius. Here is the Memorandum Opinion.

The Diocese challenged ACA regulations requiring insurance coverage for birth control. They could have filed anywhere in the state. They chose the Coast because they liked the draw. They wanted Judge Ozerden or Judge Guirola.

The problem was the regulations had not gone into effect. So it wasn’t the law. The claim was not ripe for adjudication.

It was not a close call. As the opinion explained, the ripeness doctrine prevents courts from wading into disputes based on future events that aren’t set in stone. There was no appeal.

The Catholic Church filed similar lawsuits all over the country and was losing them all for the same reason. Judge Ozerden’s opinion cited a list. Here is another later decision: Archdiocese of St. Louis Opinion. Federal courts all over the country dismissed over twenty similar cases because of the ripeness issue.

Judge Ozerden’s dismissal was without prejudice. That means the Church could refile the case when the regulations went into effect.

He followed 5th Circuit and Supreme Court precedent and cited the Constitution. He would have looked like a nut if he had gone the other way. It probably would have disqualified him from serious consideration for the 5th Circuit.

Briebart explains none of this because the whole point is to take out Judge Ozerden’s nomination.

An earlier Briebart editorial cited a 5th Circuit reversal in Time Insurance Co. v. White. In that case, the 5th Circuit vacated a Rule 12(c) dismissal of judgment on the pleadings. It was not a big deal. Here is the opinion: Time Insurance Company v. White.

Briebart didn’t disclose what happened next. The case went back down, Judge Ozerden granted summary judgment for the insurer he ruled for previously, and the case was again appealed to the 5th Circuit. A unanimous panel affirmed. In other words: “Our bad. You were right last time.” Here is the Opinion.

Two cases. Judge Ozerden was right both times.

Briebart did not explore the argument for Judge Ozerden’s nomination. He is a Mississippian with degrees from Georgetown and Stanford Law School. Most native Mississippians with that resume are now Californians or New Yorkers. To the amazement of many, Judge Ozerden returned home to pursue public service.

Between college and law school, he was a Navy officer and aviator for six years. He flew combat missions. What are the odds of a veteran not being conservative? But being a Navy veteran doesn’t mean anything to the the alt-right.

Judge Ozerden has garnered support from four Mississippi Senators (Lott, Cochran, Wicker, Hyde-Smith). That’s four conservative senators from the the most conservative state in the Union.

Briebart’s suggestion that Ozerden might not be conservative is stupid. He and his family weren’t hiding out in Gulfport. Everyone knew them. They lived one street over from Ole Miss head coach Matt Luke’s family. Of course it wasn’t today’s hyper-partisan world, so people didn’t have to join conservative clubs to prove their bonafides. His father, who the crackpot Briebart commenters worry about, was beloved on the Coast.

And the Coast has conservative bonafides. Voters were electing Trent Lott to Congress in the 1970’s when the rest of Mississippi was solid blue. The same Senator Lott who spoke in glowing terms about Judge Ozerden’s father at the investiture for his District Judge seat.

I don’t know the who or the why behind the attack on Judge Ozerden. I just know it’s not the who and the why given on the surface. The surface attack is too weak to be real.

I hate to even contemplate the worst case scenario, so I won’t go there. At least not now.

There have been rumors for years that political forces in Texas and Louisiana are making a play for Mississippi’s federal judiciary seats. Given those rumors, and Senator Cochran’s recent retirement, you must consider whether the real forces behind the attack are Republicans in Texas and/or Louisiana.

Sure Briebart says Trump could nominate someone else from Mississippi. But Briebart wouldn’t know if it was getting played. And who exactly could Trump nominate? Judge Dan Jordan? He was apparently rejected as not conservative enough.

Or someone with no judicial record at all? Would they rather have what’s behind door number 2 than a known commodity? I’m guessing no. And that would be the argument for giving the seat to a judge from Louisiana or Texas once Judge Ozerden is eliminated.

As long as Thad Cochran was Chairman of the Senate Appropriations Committee, there was only so much other Republicans could safely do to challenge the decisions of Mississippi’s Senators. That protection is gone now.

Someone might be putting Senators Wicker and Hyde-Smith to the test. If they roll on Judge Ozerden’s nomination, they will be viewed as weak and get steamrolled in the future.

Mississippi has military bases and a NASA facility with many civilian employees. Senate clout is important to protecting those jobs. A base closure would be devastating for the state economy.

Wicker and Hyde-Smith not backing down is not just important for Ozerden’s nomination. It’s important for the next time someone tries to go around them or doesn’t take them seriously. It’s important for the economic security of Mississippians who do not know or care about Court of Appeals seats.

Geoff Pender’s article on the Clarion-Ledger’s website Thursday confirmed that the recent nominations to the 5th Circuit Court of Appeals did not include a nomination for the seat held by the retired Judge Grady Jolly. From the article:

On Thursday, the White House sent the Engelhardt nomination to the Senate listed as a replacement for Clement, not Jolly, an indication Mississippi’s seat remains open.

Sens. Thad Cochran and Roger Wicker this week in a joint statement said they are continuing to work with the Trump Administration on a nominee — a choice over which a state’s senators usually have a large say as nominees require Senate confirmation….

The Senators’ offices have not explained why Mississippi does not have a nominee yet when picks from other states have already been named.

Based on the current publicly available information, it appears that Mississippi is favored to retain Judge Jolly’s seat.

But it’s also my understanding that there’s no guarantee. I will remain worried until President Trump nominates a Mississippian for the seat. The reasons for my concern are:

• Trump is a wing-nut;
• the Republican Party is divided;
• Senators Cochran and Wicker may or may not be aligned with the President;
• Trump is a wing-nut;
• Texas is an obvious threat to Mississippi on federal judicial appointments;
• it’s politics; and
• see points 1 and 4 above.

There was speculation in comments that Governor Bryant and the Senators might not be on the same page as far as who is appointed. A 5th Circuit seat is a plumb. I’m sure there is some interesting maneuvering going on behind the scenes.

The A.P. has a short story today titled ‘Mississippi jurist should fill appellate seat, senators say.’ Here are the key passages:

Mississippi’s two Republican U.S. senators say they are working with President Donald Trump’s administration to fill a seat on a federal appeals court with someone from the state.

Sens. Thad Cochran and Roger Wicker said in a joint statement Monday it’s their priority to have “a well-qualified, constitutional conservative jurist” from Mississippi to succeed Judge Grady Jolly on the 5th U.S. Circuit Court of Appeals…

“The administration understands that it is a priority to us that a Mississippian be nominated to fill this seat on the U.S. Court of Appeals for the 5th Circuit,” the joint statement from Cochran and Wicker said. “We look forward to President Trump, with the advice and consent of the Senate, announcing such a nomination as soon as possible.”

Trump last week nominated two people from Texas and two from Louisiana to the 17-member court.

Three seats already were vacant. A federal court website shows that Judge Edith Brown Clement, of Louisiana, plans to retire from active court service, though no date has been set.

My Take:

Same as last week. Cochran and Wicker blew it by letting it come to this.

Let’s be clear. Mississippi lost Judge Jolly’s seat last week.

Maybe we get it back when Judge Clement’s replacement is named. Then again, maybe not.

Several people contacted me after my original post to alert me that maybe we haven’t lost the seat because of the Clement vacancy. Insiders are hopeful. But not one person told me that Mississippi definitely will get the Clement seat–all said we might not. And Cochran and Wicker don’t say it either.

I was also contacted last week by lawyers from outside Mississippi. Their perception is that Mississippi lost the seat.

Bottom line is that it shouldn’t have come to this. The Louisianan who was named to Judge Jolly’s seat should be waiting on the Clement vacancy. Cochran and Wicker’s ‘Mississippi jurist’ should have been named last week.

This has not been handled well by Mississippi’s two senators. That will be true regardless of whether a Mississippian fills the next opening.