American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Fifth Circuit
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Judge Oldham grew up in Richmond, Virginia.[1] While attending the University of Virginia, Oldham helped found a sexual assault peer education group called “One in Four,” designed primarily to educate young men about sexual violence.[2] Judge Oldham said about Justice Samuel Alito and Judge David Sentelle, both of whom he clerked for, “[T]hose two men and the impact that they had on my life is indescribable with words in the English language…The way they approach their jobs, the way they approach their families, the way they think about the law, the way they think about American history, English history. Their just deep, rich profound understandings of the rule of law, I just, I find both of them such inspirations.”[3]
From 2004 to 2005, Oldham was a “Harvey Fellow” for the Mustard Seed Foundation,[4] a Christian ministry organization that provides grant money to churches around the globe.[5] Oldham belonged to the Central Union Mission from 2006 to 2008.[6] The Mission is a faith-based, Christian non-profit in Washington, D.C. that operates an emergency shelter and provides various social services to those in need.[7]
Oldham was also a member of Compassion International from 2008 to the time of his Senate Questionnaire in 2018.[8] Compassion International is a Christian organization which seeks to support the development of children in poverty.[9] Additionally, Oldham belonged to “Cru,” an international Christian ministry organization largely focused on campus ministry.[10]
On the role of empathy in judging, Oldham has stated, “Empathy is an essential human virtue. And there are places where empathy can appropriately affect the judicial function. Criminal sentencing is one example. For appellate judges, it is less clear how empathy can appropriately affect a case.”[11]
[1] Nomination Hearing, U.S. Senate Committee on the Judiciary (Apr. 25, 2018), https://www.judiciary.senate.gov/committee-activity/hearings/04/25/2018/nominations, at 21:59.
[2] Nomination Hearing, U.S. Senate Committee on the Judiciary (Apr. 25, 2018), https://www.judiciary.senate.gov/committee-activity/hearings/04/25/2018/nominations, at 58:12.
[3] The Incredible, Indescribable Clerkship, Bolch Judicial Institute, Duke Law (June 11, 2021), https://judicialstudies.duke.edu/2021/06/s2-ep3-the-incredible-indescribable-clerkship/.
[4] S. Questionnaire p. 4. Link here.
[5] See Mustard Seed Foundation, https://msfdn.org/.
[6] S. Questionnaire p. 5. Link here.
[7] See About Us, Central Union Mission, https://www.missiondc.org/who-we-are/about-us/.
[8] S. Questionnaire p. 5. Link here.
[9] See About Us, Compassion International, https://www.compassion.com/about/about-us.htm.
[10] See About, Cru, https://www.cru.org/us/en/about.html.
[11] S. Questions for Answer, p. 22. Questions from Senator Durbin. Question #17.
Oldham applies originalism. In Cole v. Carson, Judge Oldham and Judge Ho focused on the importance of "principled originalism," declaring, “Originalism for me, but not for thee, is not originalism at all."[12] Judge Oldham allows the text to speak for itself. He has written: "[A]s should go without saying by now, 'our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.'"[13] He has also evinced an attitude of judicial restraint, saying, "It is nonetheless incumbent on every judge to put aside his or her personal beliefs and previous clients, and instead to apply the law fairly and faithfully...” [14] In a concurrence, Oldham wrote: "The Constitution charges federal judges with deciding cases and controversies, not with running state prisons….”[15] Judge Oldham has supported separation of powers. He wrote: "The separation of powers is the defining feature and virtue of our Constitution.” [16]
[12] Cole v. Carson, 935 F.3d 444, 479 (5th Cir. 2019), as revised (Aug. 21, 2019). Link here (bold and emphasis added).
[13] Cochran v. U.S. Sec. & Exch. Comm'n, 20 F.4th 194, 213-214 (5th Cir. 2021), cert. granted sub nom. Sec. & Exch. Comm'n v. Cochran, 212 L. Ed. 2d 777, 142 S. Ct. 2707 (2022). Link here, PDF p. 30 (bold and emphasis added, but the italicized words "purposes" and "policies" are emphasized in the original).
[14] S. Questions for Answer, p. 9. Questions from Senator Whitehouse. Question #8a (bold and emphasis added).
[15] Valentine v. Collier, 993 F.3d 270, 291 (5th Cir. 2021). Link here, PDF p. 27 (bold and emphasis added).
[16] Cochran v. U.S. Sec. & Exch. Comm'n, 20 F.4th 194, 214–15 (5th Cir. 2021), cert. granted sub nom. Sec. & Exch. Comm'n v. Cochran, 212 L. Ed. 2d 777, 142 S. Ct. 2707 (2022). Link here, PDF p. 31-32 (bold and emphasis added)
Oldham has expressly defended faith in the public square. In Freedom from Religion Foundation v. Mack, Judge Oldham’s opinion states, “The Supreme Court has held that our Nation's history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions…It's true that Marsh and Town of Greece involved a legislature's chaplains, not a justice of the peace's chaplains. But it's unclear why that matters, given the abundant history and tradition of courtroom prayer.”[17]
[17] Freedom From Religion Found., Inc. v. Mack, 4 F.4th 306 (5th Cir. 2021); Link here, PDF p. 11-12 (bold and emphasis added).
Judge Oldham sat on a panel in which a per curiam opinion seemed reluctant to deem government pressure as “persecution” on churches abroad for purposes of asylum. He strongly adheres to the ecclesiastical-autonomy doctrine. In McRaney, Judge Oldham said in dissent: “The Supreme Court has told us that the judicial power of the United States does not extend to ministry disputes…This case should've ended with a straightforward application of that doctrine.”[18]
[18] McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1075 (5th Cir. 2020). Link here, PDF p. 19 (bold and emphasis added).
Judge Oldham has defended the sanctity of life since as early as 2012 when he was the Deputy Solicitor General of Texas and does so on the bench. Oldham, as Deputy Solicitor of Texas, contributed to a State reply brief which read, “As the Supreme Court has explained, “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of [unborn] life.”[19]
In the April 2023 case Alliance for Hippocratic Medicine v. Food & Drug Administration, Judge Oldham sat on a panel that partially stayed Judge Kacsmaryk’s injunction suspending the FDA’s approval of the abortion drug mifepristone. This ruling stayed the injunction with respect to the FDA’s initial 2000 approval but allowed the injunction to stand as to the FDA’s later decisions that loosened requirements surrounding the administration of the drug.[20]
[19] Reply Brief for Appellant at 11, Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014) (No.13-51008) (emphasis added).
[20] See All. for Hippocratic Med. v. Food & Drug Admin., No. 23-10362, 2023 WL 2913725, at *1 (5th Cir. Apr. 12, 2023), Link here.
Prior to Bostock, Judge Oldham supported “sex” as not including sexual orientation. He supports traditional marriage. In O’Daniel v. Industrial Service Solutions, Judge Oldham joined the panel’s opinion written by Judge Jones, which stated, “‘Title VII in plain terms does not cover ‘sexual orientation.’…Declining to consider the statute to cover a category of people not squarely identified by Congress in 1964 or even linguistically encompassed today by the applicable language…is thus a matter of precedent....” [21]
[21] O'Daniel v. Indus. Serv. Sols., 922 F.3d 299, 305 (5th Cir. 2019); Link here, PDF p. 8-9 (bold and emphasis added).
Judge Oldham has implied Heller left room for “common-sense gun regulation.” In his Senate Questionnaire, Oldham said: “In Heller, the Supreme Court noted: ‘Like most rights, the right secured by the Second Amendment is not unlimited …The Court ‘also recognize[d] another important limitation on the right to keep and carry arms’—namely, ‘that the sorts of weapons protected were those in common use at the time.’” [22] Oldham worked as general counsel to the Texas Governor and represented Texas in its fight against a California concealed carry law.[23] He also argued that Texas concealed carry license holders should be able to carry firearms into some government buildings.[24]
[22] S. Questions for Answer, p. 3. Question from Senator Feinstein, Question #4b (bold and emphasis added).
[23] Brief for the Petitioners as Amicus Curiae, Peruta v. California, No. 16-894 (2017), https://www.scotusblog.com/wp-content/uploads/2017/03/339607170-Amicus-Brief-Filed-by-Texas-and-8-Governors-in-Peruta-v-San-Diego-County.pdf.
[24] See Cindy Horwell, Montgomery County Officials Voice Worries over Open-Carry Law, Houston Chronicle (Dec. 15, 2015), https://www.houstonchronicle.com/neighborhood/woodlands/news/article/Montgomery-County-officials-voice-worries-over-6701402.php.
Oldham supports First Amendment rights of students and the Tinker rule. In Oliver v. Arnold, Judge Oldham declared: “It is well settled that students do not give up their First Amendment rights at the schoolhouse gate. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). And federal courts bear a solemn responsibility to vindicate those rights.”[25]
[25]Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021). Link here, PDF p. 38 (bold and emphasis added).
Before he was a judge, Oldham seemed averse to the expansion of the administrative state.[26] Since becoming a judge, Judge Oldham has taken a strong stance against the administrative state. In Cochran v. United States SEC, Judge Oldham wrote in concurrence: “If administrative agencies ‘are permitted gradually to extend their powers by encroachments—even petty encroachments—upon the fundamental right, privileges and immunities of the people,’ the Court warned that ‘we shall in the end, while avoiding the fatal consequences of a supreme autocracy, become submerged by a multitude of minor invasions of personal rights, less destructive but no less violative of constitutional guaranties.’”[27]
[26] "The Texas Plan for Amending the Constitution and Restoring the Rule of Law" Andrew Oldham, University of Chicago Federalist Society (May 9, 2016). Link here.
[27] Cochran v. U.S. Sec. & Exch. Comm'n, 20 F.4th 194, 213-214 (5th Cir. 2021), cert. granted sub nom. Sec. & Exch. Comm'n v. Cochran, 212 L. Ed. 2d 777, 142 S. Ct. 2707 (2022). Link here, PDF p. 46 (bold and emphasis added).
Oldham has been an active member of the Federalist Society for twenty years,[28] a member of Christian organizations since 2008,[29] and a member of the NRA from 2015 until his confirmation.[30] He also clerked for Justice Alito from 2008 to 2009.[31]
[28] S. Questionnaire p. 5. Link here.
[29] S. Questionnaire p. 5. Link here.
Oldham supports relaxed mask standards but appears soft on vaccine mandates. In E.T. v. Paxton, Judge Oldham wrote an opinion dismissing a claim that challenged a Texas executive order that prohibited schools from imposing mask mandates. Oldham wrote: "Plaintiffs have not presented an injury in fact sufficient to satisfy Article III."[32] In that same case, Judge Oldham spoke favorably of "policies regarding vaccines" when he wrote: "In light of widely available vaccines and the schools' other mitigation efforts, 'the odds' of any particular plaintiff contracting COVID-19 and subsequently suffering complications are 'speculative.’” Oldham also stated: "[T]he schools can adopt policies regarding vaccines, plexiglass, hand sanitizer, social distancing, and more.” [33] In Sambrano v. United Airlines, a case in which employees sued an employer over its vaccine mandate and related oppressive policies, Judge Oldham was on a panel that issued a per curiam opinion that was favorable to the employees. However, the language of the per curiam opinion was lukewarm: "Critically, we do not decide whether United or any other entity may impose a vaccine mandate.”[34]
[32] E.T. v. Paxton, 41 F.4th 709, 714–15 (5th Cir. 2022). Link here, PDF p. 3-4 (bold and emphasis added).
[33] E.T. v. Paxton, 41 F.4th 709, 717–18 (5th Cir. 2022). Link here, PDF p. 9 (bold and emphasis added).
[34] Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610 (5th Cir. 2022). Link here, PDF p. 2 (bold and emphasis added).
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.