Justice Patrick Wyrick of the Oklahoma Supreme Court has the distinction of being the youngest candidate on President Trump’s Supreme Court shortlist.  So far, President Trump has prodigiously nominated all the state judges on his shortlist to the federal appellate bench.  However, as there are no Oklahoma vacancies on the Tenth Circuit, Wyrick has been nominated to the trial court instead.

Background

Patrick Robert Wyrick was born in Denison, TX on March 11, 1981.  Wyrick attended the University of Oklahoma, where he played baseball as a student athlete.[1]  While at the University, he met his future-wife, fellow athlete Jamie Wyrick (nee Talbert).[2]  Wyrick received his B.A. in 2004 and then received a J.D. from the University of Oklahoma College of Law in 2007.[3]

After graduating, Wyrick served as a law clerk to Judge James Payne on the U.S. District Court for the Eastern, Northern, and Western Districts of Oklahoma.[4]  He then joined the Oklahoma City office of GableGotwals as an Associate.

Just three years later, Wyrick, not even thirty, was chosen by newly elected Oklahoma Attorney General Scott Pruitt (now the EPA Director) to serve as Oklahoma Solicitor General.[5]  As Solicitor General, Wyrick was the primary representative before the courts for the state of Oklahoma.

In 2016, Justice Steven Taylor of the Oklahoma Supreme Court announced his retirement, and Wyrick was one of four candidates who applied for the seat.[6]  On February 9, 2017, the 35-year-old Wyrick was appointed by Governor Mary Fallin to fill the vacancy.[7]  Wyrick’s appointment sparked an immediate lawsuit from the American Civil Liberties Union, who argued that Wyrick, who listed a residence in Atoka to qualify for the appointment to a seat based in District 2 of Oklahoma, actually resided in Moore and Oklahoma City, citing Wyrick’s home purchases, marriage license, as well as the fact that he was registered to vote in Central Oklahoma in 2016.[8]  The Oklahoma Supreme Court dismissed the lawsuit, finding that they were not the proper agency to determine the eligibility of a sitting justice.[9]

In November 2017, Trump added Wyrick to his list of potential nominees to the U.S. Supreme Court.[10]  Wyrick’s addition makes him the youngest potential nominee on the list.

History of the Seat

Wyrick has been nominated to fill the fifth-longest pending vacancy in the nation.  This seat on U.S. District Court the Western District of Oklahoma opened on July 7, 2013, with Judge David Russell’s move to senior status.  However, the Obama Administration did not put forward a nomination for the next two and a half years, as they negotiated with Oklahoma Republican senators James Inhofe and James Lankford.  Finally, on December 16, 2015, President Obama nominated Judge Suzanne Mitchell, a U.S. Magistrate Judge on the Western District, to fill the vacancy.[11]

Mitchell, a Democrat, was nominated as part of a package with Scott Palk, a Republican.  The two nominees received a hearing before the Senate Judiciary Committee on April 20, 2016, and were both reported to the floor unanimously on May 19, 2016.  However, on the floor, Mitchell and Palk languished due to a confirmation blockade imposed by Senate Majority Leader Mitch McConnell and were not confirmed.[12]  After the election of Donald Trump, he renominated Palk (who was confirmed in late 2017).  However, Mitchell was not renominated.

Wyrick has been in contact with the White House Counsel’s Office since early 2017 in discussions on an appointment to the Western District.[13]  While he interviewed with the White House in March 2017, there was no further action on his nomination until November when he interviewed with a selection committee established by Inhofe and Lankford.[14]  After Inhofe and Lankford agreed to “recommend” Wyrick to the White House, he was nominated on April 10, 2018.

Political Activity

Other than a short stint as a volunteer for Republican Sen. Tom Coburn in 2004, Wyrick has no history with partisan politics.

Legal Experience

Wyrick began his legal career as a law clerk for Judge James Payne.  After that, he joined GableGotwals working on civil and appellate litigation.  After just three years at the position, Wyrick became Oklahoma’s Solicitor General, the primary appellate attorney for the state.  As Solicitor General, Wyrick has handled many controversial matters on behalf of then-Attorney General Scott Pruitt.

Death Penalty

In 2015, Wyrick argued Glossip v. Gross, a challenge to the use of midazolam as a sedative in Oklahoma executions, before the U.S. Supreme Court.[15]  Petitioners argued that midazolam was ineffective in preventing pain during the procedure and, as a result, the executed could feel the pain of being “burned alive” from the inside.[16]  In his briefs, Wyrick defended the Oklahoma drug protocol, arguing that death penalty opponents had successfully pressured drug companies into cutting off supplies of more effective drugs.[17]  It was a thread conservatives picked up on at oral argument.[18]

However, Wyrick also drew criticism from justices for allegedly misrepresenting the scientific evidence cited in the state’s brief.  Justice Sotomayor called out Wyrick at oral argument, noting that his assertions were “directly contradicted by the literature cited in the state’s written arguments.”[19]  Wyrick later conceded error on a related point, acknowledging that his office had inadvertently misrepresented that a letter sent to the Texas Department of Corrections had actually been sent to the Oklahoma Department of Corrections.[20]

Ultimately, the Supreme Court backed Wyrick’s position in a 5-4 decision.[21]

Abortion Rights

As Solicitor General, Wyrick was charged with defending abortion restrictions passed by the Oklahoma legislature and challenged under the Fourteenth Amendment.[22]  Among the restrictions Wyrick defended were laws requiring women to undergo ultrasounds before undertaking an abortion and laws restricting the use of drugs commonly used for medication abortions.  Both restrictions were unanimously struck down by the Oklahoma Supreme Court, as unconstitutional under Supreme Court precedent.[23]  Wyrick also defended a prescription requirement for minors who wanted to purchase Plan B contraceptives,[24] a provision imposing liability on physicians who prescribe prescription drugs for abortions,[25] and a ban on off-label use of drugs for abortions.[26]  In successfully defending the latter, Wyrick noted his views on the “dangers” of off-label use, noting:

“We have people who walk in perfectly healthy and are dead three days later.”[27]

Affordable Care Act

As Solicitor General, Wyrick sued to challenge a number of regulations imposed under the Affordable Care Act, including the IRS “large employer mandate” which Wyrick argued violated the intent of Congress in the ACA.[28]  Wyrick also raised the initial challenge to the IRS Rule permitting ACA subsidies to be offered to individuals on the federal exchange (this challenge was later rejected by the U.S. Supreme Court in King v. Burwell).[29]

Sharia Law

As Solicitor General, Wyrick also led the defense of the “Save Our State” Constitutional Amendment, which prohibited Oklahoma courts from considering international law or sharia law (Islamic jurisprudence) in its proceedings.  The Amendment was challenged by Muneer Awad, the executive director of the Oklahoma chapter of the Council on American-Islamic Relations (CAIR), who alleged that it violated his rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.[30]

At oral argument, Wyrick denied that the authors of the Amendment sought to single out sharia law, instead arguing that the ban included all international law.[31]  Nevertheless, the Tenth Circuit upheld a preliminary injunction against the Amendment.[32]  In 2013, Judge Vicki Miles-LeGrange made the injunction permanent.[33]  (Disclosure: As a legal fellow at the American Civil Liberties Union, who represented the plaintiff, I assisted with legal research and writing in support of the plaintiff’s case on remand.)

Jurisprudence

Wyrick has served as a Justice on the Supreme Court of Oklahoma since 2017.  In his year and a half on the bench, Wyrick has heard approximately 100 cases, and has authored five majority opinions,[34] eight concurrences,[35] and six dissents.[36]  Despite his relatively new position on the court, Wyrick has not hesitated to stake out strong positions, concurring and dissenting frequently.

Taxes and Fees

In 2017, Wyrick wrote for the Oklahoma Supreme Court in two high-profile challenges to state taxes.  In one case, Wyrick struck down the newly passed tax on cigarettes, finding that the “tobacco cessation fee” was not passed in conjunction with the constitutionally mandated supermajority for revenue raising bills.[37]  In the other case, Wyrick upheld the elimination of the state’s sales tax exemption, writing for a 5-4 majority that bills removing exemptions from existing taxes do not count as “revenue” bills while bills imposing new taxes do.[38]  In dissent, Justice Doug Combs pointed to the legislative history and the purpose of the auto tax to show that it was intended to raise revenue.[39]

Dissents

In a variety of civil cases, Wyrick has authored dissents advocating denial of claims.  For example, in one case where the Oklahoma Supreme Court found that a worker had properly been adjudicated disabled and was entitled to benefits, Wyrick dissented with Justice James Winchester, calling the majority opinion a “legal fiction.”[40]  In another case, Wyrick authored a dissent (joined only by Justice Winchester) arguing that a sex offender should be permitted to deregister.[41]  In yet another case, the Oklahoma Supreme Court held that plaintiffs injured by a drunk driver could bring suit against a convenience store that negligently and recklessly sold alcohol to the visibly intoxicated driver.[42]  Wyrick dissented, arguing that the decision would lead to “arbitrary impositions of liability” and that it dismissed the proximate cause requirement of tort claims.[43]

Writings

In 2014, Wyrick authored a blog post at SCOTUSBlog arguing for the plaintiffs in King v. Burwell.[44]  In the post, Wyrick argues that the Supreme Court should strike down the IRS Rule permitting Obamacare subsidies to be granted to those who participated in state and federal exchanges.[45]  He calls the case “a straightforward question of statutory interpretation,” arguing that permitting the rule would “undermine Congress’ very specific intent.”[46]  The Supreme Court ultimately rejected the argument in the post, with Chief Justice Roberts upholded the IRS Rule in an opinion for six justices.[47]

Overall Assessment

Wyrick’s youth and his conservative background is likely to draw opposition during the confirmation process.  Overall, I expect four primary arguments to be raised against Wyrick.

First, opponents may argue that Wyrick, only thirty-seven years old, lacks the requisite level of experience to be a federal judge.  They may note that the American Bar Association (ABA) recommends a minimum of twelve years of practice for judicial nominees and that Wyrick has only practiced for nine years.  In response, Wyrick and his supporters will argue that Wyrick’s experience as Oklahoma Solicitor General is particularly high-level, and as such, Wyrick is well-qualified for the bench.  They will also note that Wyrick has argued (and won) before the highest courts on both the state and federal level.

Second, critics may point to Wyrick’s tenure as Solicitor General and criticize his defense of controversial laws, including abortion restrictions, the “Save our States” amendment, and the use of midazolam in imposing the death penalty.  They may also bring up Wyrick’s correction of the record in Glossip.  In response, Wyrick will argue that, as Solicitor General, it was his responsibility to defend Oklahoma laws, and that his defense does not indicate a policy agreement with the underlying laws.

Third, senators may look to Wyrick’s jurisprudence on the Oklahoma Supreme Court.  They may argue that his dissents in Garrett, Boyle, and Frye suggest an unwillingness to support plaintiffs in civil cases.  In response, Wyrick will argue that (even though a majority of his colleagues disagreed), the law compelled the reasoning of his dissents.

Fourth, senators may raise Wyrick’s connection to Pruitt, Trump’s controversial EPA Director.  Given Wyrick’s initial selection as Solicitor General by Pruitt, critics may try to tie Wyrick to his old-boss’ more controversial actions.  If this question is raised, it will be interesting to see if Wyrick offers to recuse himself in cases involving Pruitt, and if such recusal is demanded by critics.

Overall, there is no denying Wyrick’s intelligence and accomplishments.  Nevertheless, the ease of Wyrick’s confirmation will ultimately turn on his answers to the concerns raised above.

---