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AF J NOMINEE REPOR T U.S. Court of Appeals for the Fifth Circuit kurt engelhardt AFJ NOMINEE REPORT AFJ U.S. Court of Appeals for the Fifth Circuit WWW.AFJ.ORG CONTENTS Introduction, 1 Biography, 2 Legal and Other Views, 2 Prosecutorial Misconduct, 2 Danziger Bridge Shooting, 3 Truvia v. Julian, 5 Sexual Harassment, 7 Pregnancy Discrimination, 10 Discrimination Based on Religion, 11 Denial of Benefits, 12 Same-Sex Marriage, 13 Education, 14 Other Noteworthy Civil Cases, 14 Other Noteworthy Criminal Cases, 16 Conclusion, 17 WWW.AFJ.ORG PAGE 1 Engelhardt’s most prominent case involves his decision to overturn the convictions INTRODUCTION of five New Orleans police officers who had been convicted of shooting unarmed civilians on the Danziger Bridge in New On September 28, 2017, President Trump Orleans, days after Hurricane Katrina, nominated Judge Kurt D. Engelhardt of the because Justice Department officials had Federal District Court of Eastern Louisiana to fill anonymously posted online comments a seat on the U.S. Court of Appeals for the Fifth about the case. Circuit.1 Engelhardt was nominated to replace Judge Edith Clement Brown, who in September This report also discusses Truvia v. Julian, 2017 notified the President of her intent to take 2 2012 LEXIS 127991 (E.D. La., Sept. 10, 2012). senior status. There, Engelhardt dismissed a civil rights lawsuit brought against the Orleans Parish Like the vast majority of Trump’s nominees, District Attorney despite the DA’s Office’s Engelhardt is a member of the Federalist repeated failure, over decades, to turn over Society, an outside group to which Trump possibly exculpatory evidence to those has indicated he has delegated the judicial 3 accused of a crime as required by the nomination process. Engelhardt has long- Supreme Court in United States v. Brady, standing connections with the Republican Party, 397 U.S. 742 (1970). including serving as congressional campaign finance chairman for former Senator David Contrasting Engelhardt’s treatment of Vitter.4 Engelhardt was formerly a member of 5 misconduct by law enforcement in the two Louisiana Lawyers for Life. cases is illuminating. In short, Engelhardt appeared less troubled by the misconduct This report highlights aspects of Engelhardt’s of New Orleans prosecutors who withheld record which we believe are relevant to potentially exculpatory evidence in the the Senate Judiciary Committee during the case of two men who had been wrongfully confirmation process (a confirmation process incarcerated for 27 years, than he was Engelhardt himself described, to the Loyola by the fact that Justice Department University Chapter of the Federalist Society, as officials anonymously posted comments “trench warfare which occurs every time a high on a newspaper website. Although the profile judicial nomination is made”).6 1 Press Release, President Donald J. Trump Announces Eighth Wave of Judicial Candidates, latter was highly inappropriate behavior, The White House (Sept. 28, 2017), https://www.whitehouse.gov/presidential-actions/presi- dent-donald-j-trump-announces-eighth-wave-judicial-candidates/. Engelhardt’s remedy – to throw out the 2 Future Judicial Vacancies, Administrative Office of the U.S. Courts (last checked Dec. 26, 2017), http://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies; convictions of five people – was extreme, see also Geoff Pender, Trump judicial pick will take Louisiana seat, not Mississippi’s, The Clari- on-Ledger (Oct. 5, 2017), http://www.clarionledger.com/story/news/politics/2017/10/05/trump-ju- especially since Engelhardt himself dicial-pick-take-louisiana-seat-not-mississippis/737114001/. 3 Sen. Comm. On the Judiciary, 115th Cong., Kurt Damian Engelhardt: Questionnaire for conceded that the online comments had Judicial Nominees, 3; see Lawrence Baum & Neal Devins, Federalist Court: How the Federalist Society became the de facto selector of Republican Supreme court justices, Slate (Jan. 31, not actually prejudiced the case. 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/how_the_federal- ist_society_became_the_de_facto_selector_of_republican_supreme.html. 4 Jenny Hurwitz, Federal Judge takes big role in fight over Jefferson Parish schools, Times-Picayune (Jan. 24, 2009), http://www.nola.com/news/index.ssf/2009/01/federal_judge_ In addition to those cases, this report takes_big_role_i.html. 5 Sen. Comm. On the Judiciary, 115th Cong., Kurt Damian Engelhardt: Questionnaire for Judi- highlights several cases involving cial Nominees, 4. 6 Speaker, Federalist Society Chapter at Loyola University School of Law, New Orleans, Loui- allegations of sexual harassment. siana (Mar. 2, 2010), at 15-16, https://www.afj.org/wp-content/uploads/2018/01/Engelhardt-QA-63. pdf. WWW.AFJ.ORG PAGE 2 Particularly at a time when harassment and Chapter of the Federalist Society in 2010, discrimination against women are in the news, it Engelhardt discussed Justice Thomas’s is notable that Engelhardt appears to have very dissent in Lawrence v. Texas, 539 U.S. narrowly applied Title VII, preventing sexual 558 (2003), as an example of “one man’s harassment cases from even being heard by a submission of personal preference in jury. favor of adherence to Constitutional principle.”8 In the same Federalist Society speech, Engelhardt quoted Justice Felix Frankfurter’s dissent in Baker v. Carr, 369 U.S. 186 (1962), as follows: “there is not BIOGRAPHY under our Constitution a judicial remedy for every political mischief, for every Engelhardt was born in New Orleans, undesirable exercise of legislative power. Louisiana in 1960. He earned his B.A. and The Framers carefully and with deliberate J.D. from Louisiana State University. After law forethought refused so to enthrone the school, Engelhardt clerked for Judge Charles judiciary. In this situation, as in others of like Grisbaum Jr., on the Fifth Circuit Court of nature, appeal for relief does not belong Appeals. Engelhardt then practiced commercial here. Appeal must be to an informed, litigation at Little & Metzger and later at Hailey, civically militant electorate.”9 McNamara, Hall, Larmann & Papale LLP. It is troubling that two dissents he cites are In 2001, President George W. Bush nominated in two of the most consequential cases for Engelhardt to the U.S. District Court for the our democracy and for equality for LGBTQ Eastern District of Louisiana, and he was Americans. confirmed in December 2001. Elsewhere, he described part of his philosophy: “As a judge, I have also learned that fairness is giving all people the treatment they earn and deserve and are LEGAL AND entitled. It doesn’t mean treating everyone alike. Everyone doesn’t earn the same OTHER VIEWS treatment.”10 I. PROSECUTORIAL MISCONDUCT Referring to Engelhardt, former U.S. Attorney Harry Rosenberg observed that, “the [F]ederalist Danziger Bridge Shooting [Society] viewpoint certainly guides the judge’s 7 political philosophy.” In United States v. Bowen, 2012 U.S. 8 Speaker, Federalist Society Chapter at Loyola University School of Law, New Indeed, in a speech to the Loyola University Orleans, Louisiana (Mar. 2, 2010), at 19, https://www.afj.org/wp-content/uploads/2018/01/ Engelhardt-QA-63.pdf. 9 Id. at 17-18. 7 Jenny Hurwitz, Federal Judge takes big role in fight over Jefferson Parish schools, 10 Speaker, LSU College of Arts and Sciences Graduation, Baton Rouge, Louisiana Times-Picayune (Jan. 24, 2009), http://www.nola.com/news/index.ssf/2009/01/federal_judge_ (May 20, 2005), at 4, https://www.afj.org/wp-content/uploads/2018/01/Engel- takes_big_role_i.html. hardt-QA-88.pdf. WWW.AFJ.ORG PAGE 3 Dist. LEXIS 50670 (E.D. La. Apr. 11, 2012), In August 2011, a jury found five officers Engelhardt presided over the trial of five New guilty in the shootings as well as the Orleans police officers convicted of shooting subsequent cover-up.19 For the victims’ six unarmed civilians, two of whom died, on families, the verdict provided closure and the Danziger Bridge in New Orleans, and the “having the officers finally held accountable subsequent police cover-up. The events took for their actions is a bit of comfort [the place in the aftermath of Hurricane Katrina.11 families] can hold on to for the loved ones they will never get back.”20 According to On September 4, 2005, four New Orleans New Orleans Mayor Mitch Landrieu, the police officers arrived at Danziger Bridge in “verdicts will provide closure for a ‘dark response to a distress call.12 According to chapter of the city’s history.’”21 witnesses, the officers opened fire on unarmed civilians, killing 17-year old James Brisette and In April 2012, Engelhardt sentenced the seriously wounding four others.13 Then the five officers to prison. The four officers police chased Lance Madison and his brother directly involved in the shooting were Ronald, a 40-year old mentally disabled man. sentenced to terms ranging from 38 to 65 Ronald was shot in the back, fatally, and then years, while the officer who was convicted was stomped on by one of the officers.14 for his role in the cover-up was sentenced to six years in prison.22 After the shootings, the New Orleans Police Department orchestrated an elaborate cover- After sentencing, the defendants filed up scheme, which even included made-up a motion for a new trial on grounds that witnesses and a planted handgun.15 Retired “the government allegedly ‘engaged in a sergeant Arthur Kaufman, who was supposed secret public relations campaign’ designed to have been investigating the shooting, was to make the NOPD ‘the household name charged with administering most of
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