Judge Kurt Engelhardt – Nominee for the U.S. Court of Appeals for the Fifth Circuit

When Kurt Engelhardt was tapped for the federal bench in 2001, the young conservative looked poised for a swift elevation to the Fifth Circuit, and potentially even further.  Unfortunately, no Louisiana vacancy arose during the Bush Presidency and the election of Barack Obama foreclosed further opportunities.  With the election of Donald Trump, Engelhardt is getting an opportunity for elevation sixteen years after his initial court appointment.

Background

Kurt Damian Engelhardt was born in New Orleans on April 21, 1960.  Engelhardt attended the American Academy of Dramatic Arts and the University of New Orleans before graduating from Louisiana State University in 1982.  After graduating, Engelhardt joined Louisiana State University Law School, getting a J.D. in 1985.

After graduating, Engelhardt completed a two-year clerkship with Judge Charles Grisbaum on the Louisiana Fifth Circuit Court of Appeal, and then joined the Metairie office of Little & Metzger, APLC.  In 1992, Engelhardt joined Hailey, McNamara, Hall, Larman, & Papale, L.L.P. as an Associate.  In 1998, Engelhardt became a Partner at the firm.

On September 4, 2001, Engelhardt, then only 41, was tapped by President George W. Bush for a vacancy on the U.S. District Court for the Eastern District of Louisiana vacated by Judge Morey Sear.  Engelhardt’s nomination was championed by then-U.S. Representative David Vitter, who was a close friend.[1]  Engelhardt was confirmed unanimously by the Senate on December 11, 2001.  He became Chief Judge for the Eastern District in 2015 and serves in that capacity today.

History of the Seat

Engelhardt has been nominated for a Louisiana seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on with Judge Edith Brown Clement’s announcement of her intent to take senior status upon confirmation of her successor.  Due to the nature of Clement’s announcement, the vacancy will not open until Engelhardt is confirmed.

In February and March 2017, Engelhardt conducted meetings with all the members of Louisiana’s congressional delegation other than Democratic Representative Cedric Richmond.[2]  In May 2017, Engelhardt interviewed with a judicial selection committee set up by Sen. Bill Cassidy (R-LA).[3]  In June 2017, Engelhardt interviewed with the White House Counsel’s Office, and was nominated on October 5, 2017.

Political Activity

Engelhardt was active in the Louisiana Republican Party before his elevation to the bench, volunteering for various Republican campaigns and serving as Vice President of the Jefferson Parish Young Republicans.[4]  Engelhardt was particularly active in Vitter’s campaign serving as Chairman of his state legislative campaign committee and as Treasurer during Vitter’s congressional bids.[5]  Engelhardt has also donated to Vitter’s campaign, including a $1000 a few months before Engelhardt was nominated to the federal bench.[6]

Legal Career

After his clerkship, Engelhardt’s initial position was with Little & Metzger, APLC, where he worked in commercial litigation, handling contracts, business litigation, and bankruptcy.[7]  Among the cases he handled there, Engelhardt represented plaintiffs in a contract dispute who alleged material misrepresentations during the execution of the purchase contract.[8]

In 1992, Engelhardt joined the Hailey McNamara law firm.  There, Engelhardt continued a focus on commercial litigation, representing insurance companies, federal contractors, and shipyards.  While Engelhardt initially practiced only in the Eastern District of Louisiana, his practice eventually grew to envelop state court matters as well.[9]

Jurisprudence

Engelhardt has served as a judge on the U.S. District Court for the Eastern District of Louisiana for the last sixteen years.  In this role, Engelhardt has presided over hundreds or criminal and civil cases, including seventy six that have gone to verdict or judgment.[10]  We have summarized some of Engelhardt’s most significant cases below.

Danziger Bridge

In perhaps his most famous case, Engelhardt presided over the trials of New Orleans police officers charged in the “Danziger Bridge Incident”, where officers shot and killed unarmed storm survivors during Hurricane Katrina.[11]  In one of the trials, Engelhardt declared a mistrial based on the federal prosecutor’s mentioning “the name of a man who was beaten to death” in an unrelated case.[12]  In 2012, Engelhardt sentenced four of the officers to 38 to 65 years in prison for the shootings, while sentencing a fifth officer to five years for covering up the shootings.[13]  In sentencing the officers, Engelhardt criticized the prosecution for their reliance on cooperating witnesses and mandatory minimum sentences, indicating that he would likely have offered far lower sentences.[14]

A few months after the sentencing, news broke that key prosecutors in the U.S. Attorney’s office had engaged in a series of anonymous posts at news sites about defendants they were charging.[15]  In response to the news, the Danziger defendants moved for a new trial while prosecutors argued that there was no evidence that the anonymous posts had affected the verdicts.  In 2013, Engelhardt granted the motion for a new trial, noting:

“Re-trying this case is a very small price to pay in order to protect the validity of the verdict in this case, the institutional integrity of this Court, and the criminal justice system as a whole.”[16]

Engelhardt’s ruling drew criticism from the Washington Post Editorial Board, who called his reasoning “unconvincing in the extreme.”[17]

In 2016, Engelhardt accepted guilty pleas from the five Danziger defendants, speaking out at the sentencing against the Department of Justice and the conduct of then Assistant Attorney General Tom Perez, who Engelhardt argued, had covered up prosecutorial misconduct in the case.[18]

British Petroleum (Rainey)

Engelhardt presided over the trial of David Rainey, a vice president at British Petroleum who was charged with lying to investigators in the aftermath of the Deepwater Horizon oil spill.[19]  Before trial, Engelhardt dismissed the lead count of the indictment: obstruction of Congress, only to see the dismissal overturned by the Fifth Circuit.[20]  Nevertheless, Engelhardt dismissed the count again on the first day of trial.[21]

The jury ultimately acquitted Rainey of the remaining counts of lying to investigators.[22]  In dismissing the jury, Engelhardt noted that he “agree[d] with the verdict.”[23]

FEMA Trailer Formaldehyde Litigation

Engelhardt presided over a part of a multidistrict lawsuit brought against FEMA, trailer manufacturers, and contractors for providing trailers contaminated with formaldehyde after Hurricanes Katrina and Rita.[24]  Early in the case, Engelhardt held that the hundreds of claims could not be considered a class action due to the uniqueness of each plaintiff’s situation.[25]  The claims ultimately ended in a settlement.

Overall Assessment

With sixteen years on the bench, Engelhardt has a long record of jurisprudence demonstrating a conservative judicial philosophy.  As such, one can conclude that Engelhardt would maintain a conservative voice on the Fifth Circuit, similar to Judge Clement, whom he would replace.

Depending on your perspective, Engelhardt’s conduct in the Danziger and Rainey trials are either a demonstration of those conservative values, or a deviation from them.  Some could argue that, in those cases, Engelhardt stood up to overzealous prosecutors and maintained the rule of law.  Others can counter that Engelhardt further denied justice to minorities by going out of his way to accommodate police officers and corporate defendants.

Ultimately, given Engelhardt’s mostly uncontroversial tenure on the District Court, he is likely to move through the confirmation process smoothly, and maintain the conservative majority on the Fifth Circuit.


[1] Stephanie Grace, ‘Fascinating Prospect’ David Vitter, President Obama Might Find Common Ground on New Orleans Judge, The Advocate, July 22, 2015, http://www.theadvocate.com/baton_rouge/opinion/stephanie_grace/article_017dafb2-2692-5a5b-a6fc-2b4763ed5aaf.html.  

[2] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 69-70.

[3] See id. at 70.

[4] See id. at 51-52.

[5] Id. at 51.

[6] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=kurt+engelhardt&order=desc&sort=D (last visited Jan. 7, 2017).

[7] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53.

[8] See Ins. Underwriters Ltd. v. Oxford Mgmt., Inc., No. 87-13771 (La Civ. Dist. Ct.).

[9] Sen. Comm. on the Judiciary, 115th Cong., Kurt Engelhardt: Questionnaire for Judicial Nominees 53-54.

[10] Id. at 17.

[11] Patrik Jonnson, Danziger Bridge Retrial Takes New Orleans Back to Katrina Chaos, Christian Science Monitor, Sept. 19, 2013.

[12] Mistrial for Officer in Katrina Bridge Shootings Inquiry, Charleston Gazette, Jan. 28, 2012.

[13] Bloomberg News, Ex-cops Get Prison for Katrina Slayings, Windsor Star, Apr. 5, 2012.

[14] Campbell Robertson, Five Ex-Officers Sentenced in Katrina Shootings, N.Y. Times, Apr. 5, 2012.

[15] Editorial Desk, Perfidious Prosecutors, N.Y. Times, Dec. 3, 2012.

[16] United States v. Bowen, 969 F. Supp. 2d 546, 627 (E.D. La. 2013).

[17] Editorial Board, Injustice Restored, Wash. Post, Sept. 22, 2013.

[18] Denis Slattery, Interior Boss Ripped in Cop Katrina Slays, N.Y. Daily News, Apr. 24, 2016.

[19] See United States v. Rainey, No. 12-cr-291 (E.D. La.).

[20] Brian M. Heberlig, Congressional Gamesmanship Leads to an Acquittal in Deepwater Horizon Case, United States v. David Rainey: A Case Study, 20 Berkeley J. Crim. L. 260 (Fall 2015).  See also United States v. Rainey, 757 F.3d 234 (5th Cir. 2014).

[21] See id.

[22] Former BP Executive Found Not Guilty of Making False Statement Over Oil Spill, thespec.com, June 5, 2015.

[23] Id.

[24] See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873 (E.D. La.).

[25] Class Action Denied in FEMA Trailer Suit, Wash. Post, Dec. 30, 2008.

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