Justice Greg Guidry – Nominee to the U.S. District Court for the Eastern District of Louisiana

Greg Gerard Guidry (R) has been a Louisiana state court judge since 2000.[1] He has served on the state’s 24th Judicial District Court, Fifth Circuit Court of Appeal (state), and as an Associate Justice on the Louisiana Supreme Court, which position he has held since since 2009.[2] In January of 2019, the White House nominated Guidry to a seat on the United States District Court for the Eastern District of Louisiana.[3]


Guidry, 58, is married with two children and currently lives near Covington, Louisiana.[4] He has been “riding and showing Western performance horses since [he] was nine years old,” and has “three horses, two dogs, three cats, four chickens and about 30 cows on a farm in St. Tammany Parish.”[5] He grew up in Marrero, Louisiana, where he attended public schools through high school.[6] According to a 2015 interview with Guidry, he knew he wanted to be a lawyer in high school and “really never strayed from that goal.” Although he “did not have a specific idea of exactly what [he] wanted to do as a lawyer,” he “could see that lawyers played an integral role in public life, and [he] wanted to be a part of that,” which made it “an easy decision.”[7]

Guidry received a bachelor’s degree from Louisiana State University (LSU) in political science and classical civilizations and a Juris Doctor from LSU’s law school (1985).[8] In law school, he was inducted into the Order of the Coif and “selected for the Louisiana Law Review on the basis of grades.”[9] Guidry was also awarded a “Rotary Foundation Scholarship for International Understanding,” during which he studied classical civilizations and Roman law at the University of the Witwatersrand in Johannesburg, Republic of South Africa.[10]

After his scholarship year, Guidry began working at the oil and energy firm Liskow & Lewis in New Orleans in its commercial litigation division.[11] He switched to the public sector in 1990, when he began a nearly ten-year stint as an Assistant United States Attorney for the Eastern District of Louisiana. As a federal prosecutor, Guidry’s work focused mainly on public corruption and commercial fraud,[12] and he also served as a supervisor, ethics officer and grand jury coordinator.[13] Guidry’s Louisiana Supreme Court bio (and other sources that have republished this bio) states that Guidry “received commendations for his work from the United States Attorney General and the Director of the Federal Bureau of Investigations.”[14]

Guidry was a district court judge on the Twenty-Fourth Judicial District Court for the Parish of Jefferson from 2000-06 and a circuit court judge (Louisiana Fifth Circuit Court of Appeal) from 2006-09. In 2009, he won an election for a position as an Associate Justice on the state’s highest court.[15] The New Orleans Advocate noted that “Guidry’s election…represented part of an ideological and partisan shift on the state Supreme Court. He replaced retiring Justice Pascal Calogero, a New Orleans Democrat who had served as the court’s chief justice.”[16] In 2010, Guidry received a master’s degree in judicial studies from the National Judicial College.[17] He has also served as a legal advisor and trial advocacy instructor to the Republic of South Africa and the United States Virgin Islands, and has “helped to train judges and prosecutors in the African nation of Malawi as they come to grips with complex financial fraud and corruption cases.”[18] He has been a member of the Federalist Society since 2000 and has stated publicly that he intends to remain a member if confirmed.[19]

History of the Seat

President Trump nominated Guidry for the seat in January of 2019. Both of Louisiana’s U.S. senators, Bill Cassidy (R) and John Kennedy (R) have praised the nomination.[20] The seat was left open by Judge Kurt Engelhardt, who has been promoted to a position on the U.S. Fifth Circuit Court of Appeals.[21] Guidry’s confirmation would fill the last open seat on the bench at the Eastern District of Louisiana.[22]

Legal Career

Guidry has spent most of his pre-bench career as a federal prosecutor.  In his testimony before the Senate Judiciary Committee, Guidry spoke about this position, noting, “It was the treat of a lifetime to walk into a courtroom and say on a regular basis, ‘I’m here today to represent the United States of America.’”[23] Searchable cases from Guidry’s legal practice are few and far between.[24] A LexisNexis search reveals one published case, a criminal defendant’s appeal from his conviction (U.S. v. Howard, 991 F. 2d 195 (5th Cir. 1993) (affirming conviction; appellant not entitled to a lesser included offense instruction because the indictment was narrowly drawn)), and one unpublished case. U.S. v. Cureaux, 1998 U.S. Dist. LEXIS 14210 (E.D.La. 1998) (denying defendant’s motion for release on bail pending appeal).

In Guidry’s legal career, he has occasionally faced allegations of legal and ethical improprieties. For example, in early 2000, while running for a judgeship, Guidry was accused by his opponent of violating the Hatch Act, which regulates federal employees’ political activities. Specifically, he was accused of accepting endorsements for his campaign for state district court judge before formally resigning as an Assistant United States Attorney. Guidry denies knowing about the complaint when it was made, being contacted by the DOJ in an investigation into the complaint, and engaging in any unauthorized political activity.[25]

In 2007, while Guidry was on the state appellate court, that court’s chief of central staff, Jerrold Peterson, committed suicide in his office, leaving notes revealing illegal practices by the court. For 13 years the court had been denying pro se prisoners’ writ applications without a three-judge panel reviewing them, as required by law.[26] The court had instead illegally allowed one judge to handle all pro se writ applications from 1994 to 2007.[27] Guidry’s opponent in the 2009 election for a position on the state Supreme Court criticized this practice, to which Guidry responded “I had no hand in it or knowledge of it.”[28]

During his 2008 campaign for the state Supreme Court, Guidry’s opponent in the race also accused him of using official court stationary to solicit campaign funds. Guidry has vehemently denied that this happened, contending that the stationary “was designed, created, printed, and distributed without public funds,” and that “the letter was not a solicitation, but an invitation for volunteers to serve on [his] campaign committee.”[29] The Louisiana Judicial Campaign Oversight Committee found Guidry’s opponent’s claims unsubstantiated.[30]

However, the same committee found that a mailer that Guidry had prepared for part of his 2008 campaign for the state Supreme Court violated the state’s code of judicial conduct, which prohibits judges and judicial candidates from “knowingly make or cause to be made a false statement concerning the identity, qualifications, present position or other fact concerning the candidate or an opponent.”). Guidry’s objectionable statements pertained to decisions by his opponent for the seat, Judge Jimmy Kuhn, and were “found not to be supported by the facts.”[31] The committee had investigated the statements in response to a complaint about same. In a public statement, Guidry explained the statements in detail, that “[a] media consultant retained by my campaign had created them, and I had relied upon the facts as presented to me,” and that he “specifically and unequivocally took full responsibility for the use of this campaign literature without any delay.”[32] No discipline was ever imposed as a result of the flyers. Guidry stated of this incident: “nothing similar has happened in my career either before or after these mailers. If confirmed, I will maintain the highest standards of ethical conduct and comply with the Code of Conduct for United States Judges.”[33]

Also in 2008, Guidry was the only judicial candidate nationwide that was endorsed by the Family Research Council (FRC), a group criticized as being antichoice and anti-LGBTQ, who has received the designation of hate group by the Southern Poverty Law Center.[34] The FRC’s executive director, David Nammo, has claimed to have had “several conversations with Guidry and that they considered Guidry’s election crucial to the future of the Louisiana court.”[35] Guidry has denied seeking the FRC’s endorsement.[36]


Describing his judicial philosophy, Guidry has said, “I believe that every person that comes to court deserves to be treated the same.”[37] Guidry has also noted that cases “involving the death penalty and the termination of parental rights” are “the two categories of cases that are most likely to cause me to lose sleep at night because of their extreme consequences.”[38] Reflecting on changes he has seen in his involvement in the judicial system, Guidry stated that “[t]he cost of accessing our court system has risen to a level which I believe is not acceptable.” Indeed, to the extent that a “first offense misdemeanor charge could lead to a massive financial obligation for someone of meager means[,] [s]ometimes, we are setting people up to fail.”[39]

Guidry has served on the Louisiana Supreme Court since 2009.  As such, Guidry was the sole dissenting judge in the Louisiana Supreme Court case Louisiana Federation of Teachers v. State, 118 So.3d 1033 (2013), which struck down Louisiana’s school voucher system as violating the state Constitution. The state Constitution establishes how monies are to be allocated to public schools based on a formula adopted by the state board of education. Then-Governor Bobby Jindal’s 2012 package of education reforms diverted money from each student’s per-pupil allocation to cover the cost of private or parochial school tuition.[40] In Guidry’s view, “the record showed that, once a student leaves a school district, the district is no longer entitled to the state’s share of the [per-pupil allocation] for that student, and thus the district’s state share…is removed from” the district’s overall allocation of funds, thus avoiding any constitutional problem.[41]

Additionally, in Costanza, et al. v. Caldwell, et al. (NO. 2014-CA-2090), which was the state of Louisiana’s appeal from a lower court’s ruling declaring Louisiana’s Defense of Marriage Act unconstitutional, the Louisiana Supreme Court considered the effect of the Supreme Court’s Obergefell decision, which came down while the appeal was pending.  The plaintiff-appellees were Louisiana women who got married in California, which had legalized gay marriage, and then sought to enforce their marriage when they returned to Louisiana, where same-sex marriage was still illegal. Additionally, one of the plaintiff-appellees had a biological son, who the other plaintiff-appellee sought to legally adopt after they were married. In light of SCOTUS’s then-recent opinion, the Louisiana Supreme Court issued a per curium opinion denying the appeal as moot, noting that SCOTUS’s “interpretation of the federal constitution is final and binding on this court.”[42] Guidry wrote separately in a concurrence to criticize a dissenting judge. The full text of Guidry’s concurrence:[43]

Judges are bound by oath to follow the law regardless of our personal opinions, and we insist that everyone appearing before us do the same. The dissenting opinion suggests we should not follow the holding of the Supreme Court of the United States. However, it cites no legal authority. It cannot, because there is none to support its position. I am bound by my oath as an elected justice of this state to abide by the rule of law.

I must also respond to the dissenting opinion’s assertion that the “most troubling prospect of same sex marriage is the adoption by same sex partners of a young child of the same sex.” The dissenting opinion appears to be unaware of the facts of the case before us, which involves the intra-family adoption of a boy by the female spouse of the boy’s biological mother. See In re Adoption of N.B., 14-314 (La. App. 3 Cir. 6/11/14), 140 So.3d 1263. In any event, the dissenting opinion cites no legal or scientific authority, nor does the record contain any evidence, that would support its insinuation.

Guidry echoed this sentiment in his answers to written questions from Senator Feinstein in February, 2019.[44] E.g., Answer 2(a) (“if I am confirmed as a district court judge, I will follow Roe v. Wade, which has been Supreme Court precedent for more than 40 years, as well as all other Supreme Court and Fifth Circuit precedent.”)


In 1984, Guidry published a student note that criticized Louisiana’s physician-patient privilege statute and suggested that courts should be allowed to circumvent it in certain circumstances. Greg G. Guidry, Note, The Louisiana Supreme Court and the Physician Patient Privilege: Arsenaux v. Arsenaux, 44 La. L. Rev. 1813 (1984). He analyzed a state supreme court case, Arsenaux v. Arsenaux, in which a husband sought to access his wife’s medical records “in order to use evidence of an alleged abortion against her in divorce proceedings.”[45] The trial court held that the records were privileged, which Guidry criticized as an “inequitable” and “harsh” result. Senator Feinstein asked Guidry about this note earlier this year: “Do you still believe that the judiciary should be given the flexibility to undermine physician-patient privilege, even when it would interfere with a woman’s right to privacy in her reproductive choices?”[46] Guidry responded: “The issue presented in Arsenaux v. Arsenaux was whether the husband, who had undergone a vasectomy, was entitled to the medical records of the wife to prove adultery as a ground for divorce. In my case note for the Louisiana Law Review, I pointed out that the majority of the court felt constrained by the language of the health care provider statute and had correctly adopted a literal interpretation of the statute as enacted by the legislature, rather than judicially create any additional exceptions to the medical records’ privilege. 44 La. L. Rev. at 1819. It was properly within the legislature’s purview to provide any further guidance to the courts to resolve actions in which an essential issue is the existence of a mental or physical condition or ailment.”[47]

Guidry was published in the Louisiana Law Review again in 2010. Greg G. Guidry, The Louisiana Judiciary: In the Wake of Destruction, 70 La. L. Rev. 1145 (2010).[48] His aim was to “offer insight into the intimate details of the state courts’ response when faced with the near collapse of the legal system’s infrastructure,” in the wake of Hurricane Katrina. Id. at 1146. “These post-storm issues include the magnitude of catastrophic destruction, the longterm displacement of the entire New Orleans population, the paralysis of neighboring cities and states with the mandatory evacuation of coastal communities, and the scope of inadequate governmental response.”

Overall Assessment

Guidry is highly qualified for the federal judiciary and, as seen from his concurrence in the Costanza matter, appears to apply the law faithfully, regardless of political orientation. The ethical violations raised against him in the past are unlikely to pose difficulties for his confirmation, as they are either relatively minor or actively contested by Guidry himself.  As such, it is likely that most Republicans (who control the Senate) will give Guidry the benefit of the doubt on the matter.


[10]http://www.lasc.org/justices/guidry.asp. A complete list of Guidry’s honors, recognitions, an employment can be found in his response to the Senate’s Questionnaire for Judicial Nominees, available at https://www.judiciary.senate.gov/imo/media/doc/Greg%20Guidry%20SJQ%20-%20PUBLIC.pdf.

[19] https://www.judiciary.senate.gov/imo/media/doc/Guidry%20Responses%20to%20QFRs.pdf (Sen. Feinstein Questions, at 7; Sen. Whitehouse Questions, at 3).

[24] The author found no cases from Guidry’s time in private practice.

[36] Id.

Wendy Vitter – Nominee to the U.S. District Court for the Eastern District of Louisiana

Before her nomination to a federal judgeship, Wendy Vitter was perhaps best known in connection to her husband, former Senator and Congressman David Vitter.  In particular, Wendy was remembered for her participation in a press conference during the D.C. Madam scandal in 2007.[1]  Now a nominee to a federal judgeship, Vitter faces new scrutiny on her professional record and public views.


Vitter was born Wendy Lee Freret Baldwin in 1961 in New Orleans.  Vitter attended Sam Houston State University, graduating in 1982.[2]  She then worked as a substitute teacher and Exercise Instructor for a few months before joining Tulane University Law School, graduating with a J.D. in 1986.[3]

After graduation, Vitter joined the Orleans Parish District Attorney’s Office as an Assistant District Attorney.[4]  In 1989, she was elevated to become Deputy Chief of Trials and in 1990, she became the Chief of Trials.[5]  In 1992, Vitter joined Abbott & Meeks as an associate.

Vitter left Abbott & Meeks in 1993 and stayed out of the workforce for the next 19 years, supporting her husband as he ran for the state legislature, the U.S. House, and the Senate.  In 2007, both Vitters burst onto the political news scene under less than ideal circumstances, when the Senator’s phone number was uncovered in a sting of the D.C. Madam (a woman charged with running a high-end brothel).[6]  In a high profile news conference, Vitter stood by her husband and assured reporters that she was “proud to be Wendy Vitter.”[7]  Ultimately, the allegations did not affect David Vitter’s 2010 re-election campaign, although some alleged that they helped to sink his gubernatorial campaign in 2015.[8]

In 2012, Vitter rejoined legal practice as a Project Director at The Roman Catholic Archdiocese of New Orleans.[9]  In 2013, she became General Counsel to the Archdiocese.[10]  She continues to work there to this day.

History of the Seat

Vitter has been nominated for a vacancy on the U.S. District Court for the Eastern District of Louisiana.  This seat was opened by Judge Helen Ginger Berrigan’s move to senior status on August 23, 2016.  While Berrigan, a left-leaning judge, retired under a Democratic president, the Obama Administration did not put forward a nominee for the vacancy.

Shortly after the election of President Donald Trump, Vitter reached out to Louisiana Senators Bill Cassidy and John Kennedy to express her interest in a federal judgeship.[11]  On April 7, 2017, Vitter interviewed with the White House Counsel’s Office.[12]  In June 2017, Vitter interviewed with a judicial selection committee created by Cassidy, and was selected as a nominee in September 2017.[13]  Vitter was officially nominated on January 23, 2018.[14]

Legal Experience

Vitter began her legal career as a prosecutor in New Orleans under District Attorney Harry Connick Sr.  While she started in juvenile courts, Vitter worked her way up to becoming Chief of Trials, trying over one hundred cases in her five years as a prosecutor.[15]  Among the cases she worked on, Vitter prosecuted Marcus Hamilton for the brutal murder of Father Patrick McCarthy.[16]  During the trial, Hamilton argued that he had killed McCarthy in response to repeated sexual advances made by McCarthy against him.[17]  Despite the argument, Vitter was able to secure the death penalty against Hamilton, which was upheld by the Louisiana Supreme Court.[18]  Vitter also prosecuted the first capital case in Louisiana where DNA evidence was introduced at trial.[19]

In 1992, Vitter moved to the firm Abbott & Meeks, handling maritime litigation, product liability, and class actions in federal court.[20]  However, she left this position approximately a year later.[21]

In 2013, Vitter rejoined the workforce as General Counsel to the Archdiocese of New Orleans.[22]

In this position, Vitter advises the Archdiocese on legal matters, including compliance with employment laws, the Americans with Disabilities Act, wage and hour regulations, and other laws.[23]  She also represents the Archdiocese in state court and before federal agencies.[24]

Political Activity & Speeches

Perhaps unsurprisingly, given Vitter’s marriage to a politician, she has an extensive history of political activity, including over 120 public appearances campaigning for her husband.[25]  Vitter has also served as an unofficial advisor in all of her husband’s campaigns.[26]  She has also donated to the Presidential campaign of former Senator Phil Gramm.[27]

Vitter has been active in the pro-life movement, serving as Honorary Chair for the Notre Dame Seminary Priests for Life luncheon in 2013 and getting the Proudly Pro-Life Award from the New Orleans Right to Life Educational Foundation for her efforts.[28]  In early March, the Alliance for Justice reported that Vitter’s judiciary questionnaire had omitted some of her pro-life activism, specifically two speeches, and participation in a panel.[29]  In the panel in question, Vitter advocated the work of fellow panelist Angela Lanfranchi, and encouraged attendees to pick up and use Lanfranchi’s brochure, The Pill Kills.[30]  The brochure in question suggests that

“women on the contraceptive pill are more likely to die a violent death, because they are more likely to cheat on their male partners, to face fertility problems, to have unhealthy children, and to have poor relationships to their partners” and that this would “influence rates of intimate partner violence.”[31]

Overall Assessment

In opposing judicial nominees, senators generally raise one or more of the following allegations: lack of experience; lack of integrity; and lack of impartiality.  In Vitter’s case, critics may potentially raise all three points against her.  We will evaluate each argument in turn to judge its plausibility and persuasiveness.

Firstly, critics may argue that Vitter lacks the requisite experience to be a federal judge.  The ABA requires a minimum of twelve years of legal practice to be qualified for a federal judicial appointment.  Vitter practiced as a state prosecutor for five years, in private practice for one year, and then as General Counsel for five years, leaving her narrowly short of the ABA’s requirements.  More concerning than the inability to meet the ABA standard, however, is the fact that Vitter’s federal court experience is extremely limited, with Vitter having practiced in federal court only for a year.  Furthermore, none of the matters she worked on during this year, by her own views, were significant enough to warrant inclusion in her Senate Judiciary Questionnaire.

In response, Vitter’s supporters can argue that she has handled over one hundred criminal trials in state court, and numerous civil proceedings as General Counsel.  Furthermore, they can argue that Vitter’s extensive experience in capital cases is particularly apposite to federal court work, as capital cases are notoriously complex and involve intimate knowledge of both facts and law.  As such, they would argue that she is qualified for the federal trial bench.

Secondly, Vitter’s critics may echo the arguments made by the Alliance for Justice, arguing that her failure to properly disclose all of her speeches and panels suggests a willful attempt to deceive the Judiciary Committee.  However, it is important to note that Vitter disclosed over one hundred speeches over a eighteen year period, making it fairly unlikely that the disclosure of 2-3 additional speeches would have been deemed dispositive.  It is far more likely that the speeches were overlooked rather than deliberately omitted.

Thirdly, Vitter’s critics may argue that her long history of partisan advocacy and of pro-life activism suggests an inability to enforce precedents favorable to abortion rights.  They may also argue that Vitter’s endorsement of Lanfranchi’s claims about contraception reflects her embrace of ideology over facts.  Assuming that Vitter, as numerous nominees before her have, will assure the Committee of her commitment to precedent and her understanding that Roe v. Wade is the law of the land, Vitter’s backers will likely point to such a commitment as evidence of her ultimate fidelity to the law rather than to her ideology.  They may also attempt to argue, as they have done with others, that attacking Vitter for her pro-life ideology amounts to an attack on her faith.

In looking over the arguments above, it is unlikely that Vitter will be deemed a “consensus” nominee.  However, she is still favored for confirmation for two reasons.  First, the Republican Judiciary Committee senator most likely to turn against a Trump nominee, Sen. John Kennedy, is solidly behind Vitter.  Second, given that many of the senators on both sides of the aisle served with Vitter’s husband, it would be particularly awkward for them to block Vitter’s path to the federal bench.  Relationships are still important in Washington, and as such, Vitter may fare better than a different nominee sharing her background and views.

[1] Griffin Connolly, Vitter’s Wife Nominated by Trump for Federal Judgeship in Louisiana, Roll Call, Jan. 24, 2018, https://www.rollcall.com/news/politics/vitters-wife-nominated-trump-federal-judgeship-louisiana

[2] Sen. Comm. on the Judiciary, 115th Cong., Wendy Vitter.: Questionnaire for Judicial Nominees 1.

[3] Id.

[4] See id. at 2.

[5] Id.

[6] Dana Milbank, Sex and the Conservative, Wash. Post, July 17, 2007.

[7] Id.

[8] Chris Cillizza, Why Did David Vitter’s Prostitute Problem Kill Him in 2015 and Not in 2010?, Wash. Post, Nov. 23, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/11/23/why-did-david-vitters-prostitution-problem-kill-him-in-2015-and-not-in-2010/?utm_term=.5a8c2d0dddc4.  

[9] Id.

[10] Id.

[11] Id. at 41.

[12] Id.

[13] Id.

[14] Press Release, White House, President Donald J. Trump Announces Tenth Wave of Judicial Candidates (January 23, 2018) (on file at www.whitehouse.gov/the-press-office).  

[15] See Vitter, supra n. 2 at 30-31.

[16] See State v. Marcus Hamilton, 681 So.2d 1217 (La. 1996).

[17] See id. at 1221.

[18] Id. at 1229.

[19] See State v. Steven Quatrevingt, 670 So.2d 197 (La. 1996).

[20] See Vitter, supra n. 2 at 31.

[21] Id. 

[22] Id. 

[23] See id.

[24] See id.

[25] See Vitter, supra n. 2 at 8-25.

[26] Id. at 29.

[28] See Vitter, supra n. 2 at 4.

[29] See Drew Broach, Wendy Vitter’s Nomination Falls Under New Scrutiny For Questionnaire Omissions, New Orleans Times Picayune, Mar. 2, 2018, http://www.nola.com/national_politics/2018/03/wendy_vitter_omissions_judicia.html.

[30] Carter Sherman and Taylor Dolven, A Trump Judge Pick Left Anti-Abortion Speeches Off Her Senate Disclosure Form, Vice News, Mar. 1, 2018, https://news.vice.com/en_us/article/vbpndy/a-trump-judge-pick-left-anti-abortion-speeches-off-her-senate-disclosure-form.  

[31] Id. (quoting The Pill Kills).

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.


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]


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.