Barry Ashe – Nominee for the U.S. District Court for the Eastern District of Louisiana

A member of the conservative Federalist Society, Barry Ashe is President Trump’s first nominee to the New Orleans based Eastern District of Louisiana.

Background

Barry Weldon Ashe was born in 1956 in New Orleans, LA.  Ashe attended Tulane University, graduating summa cum laude in 1978.[1]  Ashe then joined the U.S. Navy, serving for three years.  In 1981, Ashe left the Navy to join Tulane University Law School, graduating in 1984 magna cum laude.

After graduation, Ashe clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit.[2]  After completing his clerkship with King, Ashe joined the New Orleans office of Stone Pigman Walther Wittmann LLC as an Associate.  Ashe became a Member at the firm in 1991 and serves in that capacity today.

Ashe has served on the Executive Committee of the New Orleans Chapter of the Federalist Society since 2006.

History of the Seat

Ashe has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Ivan Lemelle’s move to senior status on June 29, 2015.  On February 4, 2016, Obama nominated federal public defender Claude Kelly to fill the vacancy.[3]  Kelly, a Republican, had the support of Louisiana Senators David Vitter and Bill Cassidy.[4]

Kelly received a hearing before the Senate Judiciary Committee on May 18, 2016, and was approved without objection on June 16.  However, Kelly’s nomination never received a floor vote due to the blockade on confirmations imposed by Senate Majority Leader Mitch McConnell.

Shortly after the election of President Donald Trump, Ashe reached out to Cassidy and Louisiana Senator John Kennedy (who replaced Vitter) to express his interest in a federal judgeship.[5]  In 2017, Kennedy recommended Ashe to the White House for the vacancy.[6]

After interviews with the White House Counsel’s Office and the Department of Justice, Ashe was officially nominated on September 28, 2017.[7]

Legal Experience

Ashe has spent his entire legal career at the firm of Stone Pigman Walther Wittmann LLC.  At the firm, Ashe primarily works in commercial and appellate litigation representing financial institutions, pharmaceutical companies, and oil, gas, & chemical industries.[8]

In one of his most notable cases, Ashe represented the Tangipahoa Parish Board of Education in a suit defending an evolution disclaimer adopted by the Board.[9]  The disclaimer, required to be read to students before presenting evolution, declared that the teaching of the scientific theory of evolution in class was not meant as an endorsement and should not be taken to dissuade or influence the Biblical view of creation.[10]  The disclaimer was struck down by both Judge Marcel Livaudais on the Eastern District of Louisiana and the Fifth Circuit as violating the Establishment Clause of the First Amendment.[11]

In another notable case, Ashe argued on behalf of the Louisiana Attorney Discipline Board in favor of the constitutionality of restrictions on attorney advertising.[12]  While the Fifth Circuit upheld many of the challenged rules, it struck down restrictions on portraying judges or juries in advertisements and restrictions on the font size and speed of disclaimers.[13]

Writings

In 2000, Ashe authored an article titled “Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere.”[14]  In the article, Ashe argues that “the Fifth Circuit is waging a war against religion in the public sphere.”[15]  Looking at the Fifth Circuit’s decisions in five areas: public funding of parochial education; prayer at high school football games; disclaimers involving evolution; “clergy in schools” counseling program; use of school buildings for religious activities, Ashe concludes that the Fifth Circuit’s ruling in favor of a separation of church and state “evinces the court’s hostility towards religion.”[16]

Political Activity

Ashe has been a frequent donor to Louisiana Republicans, including Vitter, Cassidy, Kennedy, Rep. Steve Scalise, and former Governor Bobby Jindal.[17]  In contrast, Ashe has only donated to one Democrat: Public Service Commissioner Foster Campbell.[18]

Overall Assessment

Members of both parties will likely agree that Ashe, who has over thirty years of legal experience, is professionally qualified to serve as a trial judge.  They may differ however based on his ideology and willingness to follow precedent.

Specifically, Ashe will likely be questioned as to whether he continues to maintain that the Fifth Circuit is waging a “war on religion.”  Furthermore, he is likely to be asked if he can continue to follow Fifth Circuit precedent that he disagrees with (as he will be bound to do as a district court judge).  If Ashe is able to sufficiently answer those concerns, he will likely be confirmed easily.


[1] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe.: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (February 4, 2016) (on file at https://obamawhitehouse.archives.gov).  

[4] The Leadership Conference, These Republican Senators Want Their Judicial Nominees Confirmed. Majority Leader McConnell Isn’t Listening, Medium, Aug. 4, 2016, https://medium.com/@civilrightsorg/these-republican-senators-want-their-judicial-nominees-confirmed-1d87e6bfc615.

[5] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 30.

[6] Tyler Bridges, 42-Parish Area of Western Louisiana Suffers From Vacant Judgeships, The Acadiana Advocate, Aug. 22, 2017, http://www.theadvocate.com/acadiana/news/article_dad54e68-8791-11e7-9cfc-678529cbf1c6.html.  

[7] Press Release, White House, President Donald J. Trump Announces Eighth Wave of Judicial Candidates (September 28, 2017) (on file at www.whitehouse.gov/the-press-office).  

[8] Sen. Comm. on the Judiciary, 115th Cong., Barry Ashe: Questionnaire for Judicial Nominees 15.

[9] See Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999).

[10] Id. at 341.

[11] Id. at 348.

[12] See Public Citizen, Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011).

[13] See id.

[14] Barry W. Ashe, Constitutional Law: The Fifth Circuit’s War Against Religion in the Public Sphere, 46 Loy. L. Rev. 973 (Winter 2000).

[15] Id. at 976.

[16] Id. at 1027.

[18] Id.

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