On April 10, 2018, President Trump nominated Oklahoma Supreme Court Justice Patrick Wyrick to the U.S. District Court for the Western District of Oklahoma. If confirmed, Wyrick, who is just 37 years old and has practiced law for just over ten years, will replace Judge David Russell, who assumed senior status on July 7, 2013. Patrick Wyrick is also on President Trump’s short list for the Supreme Court.
Despite his short legal career, Wyrick has made a name for himself as a protégé of current Environmental Protection Agency (EPA) Administrator Scott Pruitt, for whom he worked during Pruitt’s tenure as Oklahoma Attorney General. Wyrick has taken far-right stances on a number of controversial issues. While working as the Solicitor General for the State of Oklahoma, Wyrick assisted Pruitt in dismantling environmental protections and was criticized for enabling Pruitt’s tight-knit relationship with oil and gas lobbyists. As reported by The New York Times and the Natural Resources Defense Council, Wyrick was part of exchanges in which Pruitt received talking points provided by oil, coal and gas lobbyists against environmental regulations, repeated those talking points, nearly verbatim, and then later accepted campaign funds from those same special interests. Wyrick, with Pruitt, also advocated for restrictions on women’s reproductive health, helped dismantle protections for workers, defended a law that attempted to codify religious intolerance toward Muslims, and even came under fire for allegedly attempting to mislead the U.S. Supreme Court during his defense of Oklahoma’s death penalty protocol.
Wyrick’s nomination is in keeping with the Trump Administration’s stated goal of filling the federal bench with judges who are hostile to government regulations that protect health and safety, the environment, consumers and workers, having once stated, “I think we have all sorts of basic fundamental Constitutional problems with the nature of the current administrative state.”
As the Senate Judiciary Committee reviews Wyrick’s controversial positions and activities during government service, it is worth noting current committee Chairman Chuck Grassley’s statement in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit: “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Likewise, as Sen. Ted Cruz stated as recently as May 2018, opposing Mark Bennett’s nomination to the Ninth Circuit based on Bennett’s work as Hawaii Attorney General, “[Bennett’s] record as Attorney General of Hawaii, I believe, represents an advocacy position that is extreme and inconsistent with fidelity to law, in particular, he was an aggressive advocate as attorney general for gay marriage, he was an aggressive advocate demonstrating hostility to the first amendment and political speech, and most significantly, he was-he is an aggressive advocate for undermining the Second Amendment.” Relying on this same standard that arguments of a government lawyer may be attributed to that lawyer himself, we believe that the positions Wyrick took in the Attorney General’s Office, “represent an advocacy position that is extreme[.]” His record indicates that, as a federal judge, he would be a threat to civil rights, the environment, and workers.
Notably, in 2015, President Obama nominated Suzanne Mitchell, a highly qualified Magistrate Judge for the Western District of Oklahoma, to fill David Russell’s seat. She was voted out of committee on May 19, 2016, without opposition, and had the full support of both Oklahoma senators. Nevertheless, Majority Leader Mitch McConnell never allowed her confirmation to move forward. In fact, no judges were confirmed to the Western District of Oklahoma during Obama’s presidency despite vacancies in three of the seven seats. President Trump has now nominated three white men, including Wyrick, to fill these vacancies.
Alliance for Justice opposes Patrick Wyrick’s nomination.
Patrick Wyrick received his B.A. from the University of Oklahoma in 2004, and his J.D. from the University of Oklahoma College of Law in 2007.
After law school, Wyrick clerked for Judge James Payne of the U.S. District Court for the Eastern District of Oklahoma. He then worked as an associate at GableGotwals. In 2011, Wyrick became solicitor general for the State of Oklahoma, working under then-Attorney General Scott Pruitt. As solicitor general, Wyrick defended the placement of a Ten Commandments monument at the Oklahoma State Capitol that the Oklahoma Supreme Court found unconstitutionally used state property for “the use, benefit, or support” of a system of religion. See Prescott v. Okla. Capitol Pres.Comm’n, 373 P.3d 1032 (Okla. 2015).
In 2017, Wyrick was appointed to the Oklahoma Supreme Court by Republican Governor Mary Fallin. His appointment was met with some controversy, due to allegations that Wyrick did not reside in the district that he was appointed to represent. The ACLU filed suit, which was ultimately dismissed by the Oklahoma Supreme Court. Wyrick also lists himself as counsel to Wyrick Lumber Company.
Like many of Trump’s judicial nominees, Wyrick has been the president of his local branch of the ultraconservative Federalist Society – an outside organization to which Trump has delegated important aspects of the judicial selection process.
Ties to Pruitt and Special Interests
Wyrick has a close relationship with President Trump’s EPA Administrator, Scott Pruitt, having worked for Pruitt when Pruitt was Oklahoma Attorney General. Pruitt has called Wyrick a “dear friend and trusted counselor.” Wyrick has called Pruitt a “champion of fighting regulatory overreach at both the federal and state level.” Wyrick’s praise of Pruitt extends to claims that people should “ensure that the positions exercising those oversight powers are filled by people – like Attorney General Pruitt – who are true believers in free market ideas and the power of innovation.”
In his notes from one speech, Wyrick wrote that “Pruitt’s time as AG came in a time in history where we had an administration [of President Obama] that was as aggressive as any in history in expanding federal power and aggregating power in Washington.”
While Pruitt was attorney general, he took part in exchanges in which he accepted campaign funds from oil, coal, and gas special interests after repeating verbatim the industry’s talking points against EPA regulations.
Wyrick was regularly involved in communicating these talking points; Pruitt reportedly followed “quite explicit” suggestions from anti- environmental lobbyists that were directly facilitated by Wyrick.
According to email exchanges obtained through an open-records request by The New York Times, Pruitt’s staff reportedly took language out of letters from these special interests, “copied it onto state government stationery with only a few word changes, and sent it to Washington with the attorney general’s signature.”
For example, one official at Devon Energy – one of the largest oil and gas companies in Oklahoma – directly emailed Wyrick a draft letter in 2011 challenging Obama-era methane regulations. Then, “Mr. Pruitt took the letter and, after changing just 37 words in the 1,016-word draft, copied it onto his state government letterhead and sent it to Ms. [Lisa] Jackson, the E.P.A. administrator.” The Devon Energy lobbyist, Bill Whitsett, later emailed Wyrick and Pruitt’s chief of staff: “Outstanding! The timing of the letter is great, given our meeting this Friday with both E.P.A. and the White House… Please pass along Devon’s thanks to Attorney General Pruitt.”
In January 2013, the same Devon lobbyist emailed Wyrick, “I just let General Pruitt know that BLM [Bureau of Land Management] is going to propose a different version of its federal lands hydraulic fracturing rule thanks to input received–thanks for the help on this! We’ll see the new proposal sometime next week, I believe, and we’ll be back in touch on potential next steps.” Weeks later, he followed up in an email to Wyrick requesting a meeting and attaching a “draft letter (or something like it that Scott [Pruitt] is comfortable talking from and sending to the acting director to whom the letter is addressed)[.]” Then, he sent Wyrick and other staff members instructions on how to submit the letter to the regulatory bodies, as well as information on federal procedures and additional requests. Wyrick’s deputy solicitor general responded, “Thank you Bill, this helps! As you know, in addition to the letter we are trying to get a call with OMB setup,” to which the lobbyist replied, “Wonderful!” and asked for additional intel that Pruitt’s office could obtain.
It is worth noting that Wyrick currently owns shares in Devon Energy Corporation, as listed in his financial disclosures.
Wyrick’s ties to Pruitt are made even more troubling by the Oklahoma Supreme Court’s decision to deny further release of Scott Pruitt’s emails during his nomination to head the EPA. Governor Mary Fallin named Wyrick to serve on the Oklahoma Supreme Court on February 9, 2017.
On February 28, the Oklahoma Supreme Court blocked a trial court’s order to have more of Pruitt’s emails released to the public. As one local journalist observed after the stay of the order to release the emails, “And here we are, with Wyrick rightfully still appointed — and a Justice of the Oklahoma Supreme Court until and unless something changes — sitting on a court which just issued an indefinite stay on the release of his former boss’s [Scott Pruitt’s] emails. It just looks bad.”
Challenges to Environmental Protections
- In Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012), Wyrick argued in an amicus brief on behalf of Oklahoma that an EPA waiver allowing an increased amount of ethanol in certain fuels was unlawful. The EPA argued that the waiver was a legal regulation under the Clean Air Act, which authorizes the EPA to “establish emission standards and fuel controls” for motor vehicles, including the power to waive a prohibition. Wyrick’s brief supported the petitioners – trade associations concerned about an increase in the price of corn – who asked the Supreme Court to overturn the D.C. Circuit’s ruling in favor of the EPA. The Supreme Court declined, upholding the D.C. Circuit decision that the trade associations lacked standing to challenge the EPA’s policy.
- In EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014) (consolidated with American Lung Association v. EME Homer City Generation, No. 12-1183), Wyrick fought the EPA’s efforts to reduce pollution across state lines. Wyrick appeared on behalf of the state of Oklahoma before the D.C. Circuit, where he argued that the Court should vacate the EPA’s “Transport Rule.” See EME Homer CityGeneration, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012). The EPA issued this rule under the Clean Air Act to address the obligations of states upwind from pollution to reduce emissions. Several states and private plaintiffs challenged the rule, arguing that the EPA’s method for computing obligations exceeded its statutory authority.
- While the D.C. Circuit struck down the regulation, the Supreme Court ultimately reversed and upheld the EPA’s authority to create and enforce a federal plan addressing upwind polluters. Wyrick also appeared before the D.C. Circuit after the Supreme Court remanded the case, where he argued that the Transport Rule, while constitutional, was invalid as applied to individual states, including Oklahoma. See EME Homer City Generation, L.P. v.EPA, 795 F.3d 118 (D.C. Cir. 2015)
- In Oklahoma v. EPA, 134 S. Ct. 2662 (2014) (cert denied), Wyrick petitioned the Supreme Court to overturn a Tenth Circuit ruling in favor of the Clean Air Act. The EPA had created a policy to limit emissions of sulfur dioxide, replacing an Oklahoma state plan with more stringent federal regulations. After Oklahoma challenged the stronger emissions standards, the Tenth Circuit found that the EPA had the authority to replace state plan. Notably, Wyrick accused the Sierra Club in his reply brief of “repeatedly misrepresent[ing] the record” to the Court. Despite this accusation, the Supreme Court denied Wyrick’s petition.
- In Michigan v. EPA, 135 S. Ct. 2699 (2015) Wyrick again challenged the EPA’s authority pursuant to the Clean Air Act, this time arguing that the Act, which requires the EPA to regulate power plants when “appropriate and necessary,” was unreasonably interpreted when the EPA didn’t consider cost in its regulation. Wyrick is on the petition for Supreme Court review as well as three different briefs before the Supreme Court. The Supreme Court, in a 5-4 decision, agreed with the states, and remanded the case to the D.C. Circuit.
- After the Supreme Court decided that the EPA must consider costs before imposing regulations, the D.C. Circuit on remand chose to keep in place prior EPA regulations imposed on power plants in order to “allow the agency to expeditiously cure the defect identified” by the Supreme Court. Accordingly, the states sued again, arguing that a reviewing court may not leave an unlawful rule in place. Wyrick sought to have the Clean Air Act regulations at issue – emissions standards over toxic air pollutants produced by power plants – struck down. This time, Wyrick’s petition for Supreme Court review was denied.
- Finally, in FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) Wyrick filed an amicus brief on behalf of Oklahoma, arguing that the Federal Energy Regulatory Commission (FERC) overstepped federal authority by issuing a regulation that pays utility users to reduce energy consumption at peak power rates, known as “demand response” pricing. The Supreme Court, in an opinion by Justice Elena Kagan, rejected Oklahoma’s arguments that the regulation infringed on exclusive state authority, finding that the federal government has authority over electricity operations “affecting” wholesale marketing and pricing.
As Solicitor General of Oklahoma, Wyrick has fought reproductive rights for women, including supporting laws that limit access to contraception.
Wyrick defended an Oklahoma law, HB 2226, that required minors to obtain a prescription before purchasing Plan B. The law also placed an added requirement on adult women, who would have had to show identification to prove their age before buying Plan B – something not required by the U.S. Food and Drug Administration (FDA). The law was struck down by the district court, which found that it unconstitutionally limited women’s access to emergency contraception.
Later, Wyrick opposed contraception access by filing an amicus brief in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Wyrick is on the brief as counsel of record for the state of Oklahoma, where he argued that the contraceptive mandate in the Affordable Care Act was unconstitutional as applied to closely held corporations.
Wyrick also advocated for limiting the use of drugs for medication abortions. See Okla. Coalition for ReproductiveJustice v. Cline, 368 P.3d 1278 (Okla. 2016). As solicitor general, Wyrick defended an Oklahoma law that restricted the use of abortion- inducing drugs in years-long litigation, including petitioning the U.S. Supreme Court. Critics of the law pointed out that “Forcing patients to undergo a more invasive surgical abortion when a safer, more effective option is available … is contrary to the practice of medicine.” Wyrick, in defense of the law, said, “Oklahoma’s Constitution does not include that right (to an abortion);” and “[n]o Oklahoma woman is being prevented by this act from getting an abortion….It places reasonable requirements on how those abortions are provided.” While a district court temporarily blocked parts of the bill from going into effect, the Oklahoma Supreme Court reversed.
Wyrick also filed an amicus brief in Humble v. Planned Parenthood Ariz., Inc., 753 F.3d 905 (9th Cir. 2014) asking the Supreme Court to overturn a Ninth Circuit decision striking down Arizona’s law that limited access to drugs for medication abortions. The Ninth Circuit held that the burden the law imposed on a woman’s right to an abortion outweighed Arizona’s justification for the law. The Supreme Court denied the petition for review, leaving the Ninth Circuit’s decision in place.
In Pruitt v. Nova Health Sys., 571 U.S. 1010 (2013) (cert denied), Wyrick petitioned the Supreme Court to overturn the Oklahoma Supreme Court’s decision to strike down a pre-abortion ultrasound requirement. The Oklahoma Supreme Court found the law unconstitutional under Planned Parenthood v. Casey, and the U.S. Supreme Court denied Wyrick’s petition for certiorari.
It is also notable that Wyrick is on President Trump’s short list for the Supreme Court. President Trump has made clear he has a litmus test for any potential Supreme Court nominee, requiring that the person will “automatically” overturn Roe v. Wade. Wyrick’s record bears out Trump’s confidence that he would pass this test.
Wyrick includes among his “most significant litigated matters” Coates v. Fallin, 316 P.3d 924 (Okla. 2013).13 In Coates, Wyrick fought an association of firefighters and legislators who challenged Oklahoma’s sweeping workers’ compensation reform law, S.B. 1062, the Administrative Workers Compensation Act. The Act – backed by Republican Oklahoma Governor Mary Fallin – converted Oklahoma’s court-based workers’ compensation system into an administrative dispute resolution system. Among the bill’s other provisions was a controversial “Opt Out” clause that allowed employers out of the government-run system to reportedly “give employers almost complete control over the medical and legal process after workers get injured;” a cap on compensation for employees who suffer temporary disability while on the job; a lowering of the cap on the amount of time employees who suffer permanent disability on the job receive compensation (from 520 weeks to 350 weeks); a provision that allowed employers to pick their employees’ doctor; and a provision that allowed employers to force their employees into arbitration.
After the bill’s passing, critics claimed that the changes to the system reportedly slashed workers’ benefits by roughly $120 million. Wyrick served as lead counsel to the state defendants against allegations that the law “amounted to unconstitutional logrolling” by combining multiple subjects into a single bill. The Oklahoma Supreme Court accepted Wyrick’s argument that the structure of the bill was constitutional.
However, since the Act was originally upheld, it has been repeatedly challenged. See Vazquez v. Dillard’s,Inc., 381 P.3d 768 (Okla. 2016); Robinson v. Fairview Fellowship Homefor Senior Citizens, Inc., 371 P.3d 477 (Okla. 2016); Maxwell v. Sprint PCS, 369 P.3d 1079 (Okla. 2016). In Vasquez v. Dillard’s Inc., Wyrick defended the aforementioned “Opt Out” clause before the Oklahoma Supreme Court. The court found that it was unconstitutional for the law to allow employers to opt out of the state’s compensation scheme, since it “creates impermissible, unequal, disparate treatment of a select group of injured workers[,]” and struck down the provision. See Vasquez, 381 P.3d at 770.
In Maxwell v. Sprint PCS, workers challenged a provision of the law that deferred payments for a permanent partial disability (like the harm to or loss of “hands, fingers, arms, feet, toes, and eyes”) in cases in which the worker can return to work. 369 P.3d at 1084. The worker at issue in the case, Theresa Maxwell, suffered an injury to her knee on the job, and her workers’ compensation benefits were withheld after she returned to work, despite her physical injury and potentially reduced earning capacity. Wyrick argued that the purpose of the deferral provision was to ensure that employees who are disabled at work aren’t inappropriately compensated when they don’t return. However, as Justice Noma Gurich, writing for the Court, pointed out, “the deferral provision fails to even remotely advance this interest. As discussed above, [Theresa] Maxwell forfeited her permanent partial disability benefits by simply returning to work.” Id. at 1091. Justice Gurich continued that under the statutory deferral scheme, “An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reduction in future earning capacity, upending the entire purpose of the workers’ compensation system[.]” Id. at 1092-93.
Accordingly, the Court found that deferring payments for permanent partial disability for workers who eventually return to their jobs unconstitutionally violated their due process rights to fair compensation. In a partial concurrence, two justices agreed with striking down the relevant provision, but believed the court should have gone farther to “cure the Legislature’s unconstitutional scheme [.]” Id. at 1095 (J. Colbert, concurring in part and dissenting in part).
The Administrative Workers’ Compensation Act continues to come under fire. Among the other sections the Oklahoma courts have excised are one provision that allowed employers to deny injured employees compensation benefits if they had missed doctor’s appointments, and another that prohibited workers’ compensation claims from workers that have been employed less than 180 days.
After Wyrick joined the Oklahoma Supreme Court, he dissented from a decision that awarded workers’ compensation benefits in MultipleInjury Trust Fund v. Garrett, 408 P.3d 169, 176 (Okla. 2017) (Wyrick, J., dissenting).
Wyrick attracted controversy for the presentation of his defense of Oklahoma’s death penalty protocol in Glossip v. Gross, 135 S. Ct. 2726 (2015). The Glossip case was brought by death row inmates in Oklahoma who alleged that Oklahoma’s death row protocol was cruel and unusual.
Oklahoma’s use of the drug midazolam during the botched execution of Clayton Lockett brought the protocol under extreme scrutiny. During the execution, Lockett reportedly took over 40 minutes to die after receiving the lethal injection, and his last words were “I feel my whole body burning.”
Wyrick served as counsel of record for the state of Oklahoma, and argued the case before the Supreme Court. While the Court eventually ruled in a 5-4 decision that the state’s protocol was constitutional, Oklahoma and its attorneys, including Wyrick, came under fire from the Supreme Court.
Justice Sonia Sotomayor directly criticized Wyrick from the bench, accusing the Oklahoma attorneys of attempting to mislead the Court:
I am substantially disturbed that in your brief you made factual statements that were not supported by those sources [you cited, and were] in fact directly contradicted. So nothing you say or read to me am I going to believe, frankly, until I see with my own eyes in the context, okay?
Sotomayor said she found “many” examples of Wyrick’s team misleading the court. Justice Kagan also had harsh words for the Oklahoma death penalty protocol, describing it as “like being burned alive[.]”
Wyrick served as lead counsel and negotiator for the Oklahoma Attorney General’s Office in a five-year dispute over water rights with two of Oklahoma’s largest Indian tribes – the Chickasaw Nation and Choctaw Nation of Oklahoma. See ChickasawNation & Choctaw Nation of Okla. v.Fallin, No. 5:11-cv-00927-W (W.D. Okla. Aug. 18, 2011). The tribes sued in order to block the granting of a water permit by the state to Oklahoma City that they alleged violated a historic treaty between the tribes and the state. Oklahoma City sought to take more water from lakes within the tribes’ territories, despite the tribes’authority over those waters. Among the tribes’ concerns were that Oklahoma City would make excessive withdrawals from the tribes’ lakes to combat drought, a strategy that had destroyed the local economy of a neighboring lake during a previous drought.
Wyrick and the government argued that the tribes had actually given up certain rights to the lakes years after the signing of the original treaty with Oklahoma. While the District Court for the Western District of Oklahoma originally heard the case, it ultimately went to mediation and was settled.
Wyrick has also fought tribal sovereignty in amicus briefs and Supreme Court petitions on behalf of Oklahoma, including opposing tribal immunity from suits brought by states in Michigan v. Bay Mills IndianCommunity, 134 S. Ct. 2024 (2014) and Oklahoma v. Hobia, 136 S. Ct. 33 (2015); and arguing against tribal court jurisdiction to adjudicate certain claims against nonmembers in DollarGen. Corp. v. Miss. Band of ChoctawIndians, 136 S. Ct. 2159 (2016).
As solicitor general, Wyrick signed an Attorney General Opinion pertaining to Oklahoma’s “permissive approach to recognition of [firearm] licenses from other states.” The opinion claims that Oklahoma residents can carry concealed or unconcealed handguns if they hold a valid license issued in another state.
As solicitor general, Wyrick defended an amendment to the Oklahoma Constitution that stated that Oklahoma courts “shall not consider international law or Sharia Law” or “look to the legal precepts of other nations or cultures.” See Awad v.Ziriax, 966 F. Supp. 2d 1198, 1200-01(W.D. Okla. 2013). An Oklahoma district court struck down the amendment, and the Tenth Circuit affirmed. Id. at 1202.
Wyrick is on an amicus brief on behalf of Oklahoma in support of a Virginia voting law that was struck down by the Fourth Circuit. See LibertarianParty of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013). For a third-party candidate to appear on a presidential ballot in Virginia, he or she must gather a minimum number of signatures from voters. The Virginia law at issue required that every ballot signature be witnessed by a Virginia resident. The Supreme Court declined to hear the case, and the law was struck down for violating the First Amendment.
Wyrick is an extremely young, ideological nominee whose work as the protégé of an ethically compromised public official, Scott Pruitt, should be troubling to all Americans. Wyrick’s work with oil and gas special interests opposing environmental protections, his opposition to workers’ rights and women’s rights, his attempts to codify hostility to Muslims, and his misleading advocacy before the Supreme Court must be scrutinized by the Senate Judiciary Committee.
Alliance for Justice opposes his confirmation.