Eating their own: One practitioner’s take about last year’s Alt-Right attacks on Judge Ozerden

And that practitioner would be me, who was unable to respond to last year’s attacks by Wingnut propaganda outlet Breitbart’s on Judge O because of a matter I had before him.

First a point of disclosure, I’m not a lawyer and never will be. Further I am soon to announce my retirement from the pro se practice of law. My experience as a pro se litigant is somewhat unique because a frequent joke actual lawyers tell is that the Latin translation for pro se is “already lost” and that is true for the overwhelming majority. That was not quite true for me. I’ll have more on that in a week or so.

What is true is that before anyone, pro se or not appears before a Court it is a darn good idea to learn as much about the judge as is possible. I did lots of digging back in 2015 but not being a legal profession insider has its disadvantages because there is only so much information available in the internet.  Judge O, unlike seemingly many of the other local jurists did not grow up on Second Street in Gulfport where I know lots of folks.

That said I did find one tidbit from a now defunct Mississippi website and  that tidbit was that was Judge Ozerden was the kind of Judge that “let the lawyers lawyer”. What that means is if the case is a switchblade fight between the litigants, every one of them better bring some steel to the party or suffer the consequences. Lawyers are officers of the Court and the good ones take the charge very seriously.  That means lawyers resolving a  case among themselves (i.e. settling) is always a very favored outcome.

My experience before Judge O. was that he is exactly as advertised.  In fact my adversaries and I maybe even went a shade above and beyond with our knife fight as the Court used the term “gamesmanship” in an order issued later in the case that it used to describe the scrap. (Just because the lawyers are allowed to lawyer in Judge O’s Courtroom doesn’t mean the Judge or the Magistrate are blind to what the parties are doing.)

This brings me back to the Wingnuts and their heartburn with Judge O:

“No violation of religious liberty and conscience rights in recent years is more infamous than when Obamacare ordered the nuns of the Little Sisters of the Poor to violate Church teachings,” says Susan B. Anthony President Marjorie Dannenfelser exclusively to Breitbart News, referring to the judge’s ruling in Catholic Diocese of Biloxi v. Sebelius. “Judge Halil Suleyman Ozerden has utterly failed to protect people of faith against Obamacare’s assault on religious liberty and conscience rights and does not deserve a promotion to the Fifth Circuit.”

Jackson lawyer Phillip Thomas fills in the blanks that Breitbart didn’t and the bottom line is when alt right Wingnuts decry agenda driven rulings, they are talking about every agenda but their own:

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.

One of my claims was dismissed on the same grounds although the issues and facts were far different. Did I like having that particular claim dismissed? At the time it happened hell no but Judge Ozerden was right. Ultimately how can you not respect a Judge that calls his cases straight? It is far better than the alternative.

As far as the criticisms of Judge O on the National Review, which was clearly coordinating the attack on his potential nomination to the 5th Circuit with Breitbart, I’ll add that reversal rates are a single data point and that is assuming someone is not playing fast and loose with the facts. I know this, new judges typically get the crap cases – that was true of Sarah Vance in New Orleans and was true for Judge O, who ended up with Ex Rel Rigsby, a case where large segments of the local (and national) insurance defense bar spent years poisoning the well trolling for insurance defense business. Worth noting is that is was little ol’ Slabbed then run by two lay people that had the case called correctly from the jump. Then again we weren’t trolling for State Farm’s legal defense work.

What these attacks did accomplish is there is still a vacancy on the 5th Circuit and the Judge who retired is a Mississippi guy that needs to be replaced by a Mississippi guy IMHO. It would be nice to see someone from the coast in that slot, lord knows Judge Edith Jones could have used the perspective after Hurricane Katrina.

For those interested in this nomination, Senator Wicker is  not a hard man to find.

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