On September 28, 2017, President Trump nominated Judge Kurt D. Engelhardt of the Federal District Court of Eastern Louisiana to fill a seat on the U.S. Court of Appeals for the Fifth Circuit. Engelhardt was nominated to replace Judge Edith Clement Brown, who in September 2017 notified the President of her intent to take senior status.
Like the vast majority of Trump’s nominees, Engelhardt is a member of the Federalist Society, an outside group to which Trump has indicated he has delegated the judicial nomination process. Engelhardt has long-standing connections with the Republican Party, including serving as congressional campaign finance chairman for former Senator David Vitter. Engelhardt was formerly a member of Louisiana Lawyers for Life.
This report highlights aspects of Engelhardt’s record which we believe are relevant to the Senate Judiciary Committee during the confirmation process (a confirmation process Engelhardt himself described, to the Loyola University Chapter of the Federalist Society, as “trench warfare which occurs every time a high profile judicial nomination is made”).
Engelhardt’s most prominent case involves his decision to overturn the convictions of five New Orleans police officers who had been convicted of shooting unarmed civilians on the Danziger Bridge in New Orleans, days after Hurricane Katrina, because Justice Department officials had anonymously posted online comments about the case.
This report also discusses Truvia v. Julian, 2012 LEXIS 127991 (E.D. La., Sept. 10, 2012). There, Engelhardt dismissed a civil rights lawsuit brought against the Orleans Parish District Attorney despite the DA’s Office’s repeated failure, over decades, to turn over possibly exculpatory evidence to those accused of a crime as required by the Supreme Court in United States v. Brady, 397 U.S. 742 (1970).
Contrasting Engelhardt’s treatment of misconduct by law enforcement in the two cases is illuminating. In short, Engelhardt appeared less troubled by the misconduct of New Orleans prosecutors who withheld potentially exculpatory evidence in the case of two men who had been wrongfully incarcerated for 27 years, than he was by the fact that Justice Department officials anonymously posted comments on a newspaper website. Although the latter was highly inappropriate behavior, Engelhardt’s remedy – to throw out the convictions of five people – was extreme, especially since Engelhardt himself conceded that the online comments had not actually prejudiced the case.
In addition to those cases, this report highlights several cases involving allegations of sexual harassment. Particularly at a time when harassment and discrimination against women are in the news, it is notable that Engelhardt appears to have very narrowly applied Title VII, preventing sexual harassment cases from even being heard by a jury.