“Obviously they’re having trouble putting together the votes,” said Sen. John N. Kennedy (R-La.), a member of the Judiciary Committee.
Ozerden faces a conservative revolt from GOP Sens. Ted Cruz of Texas and Josh Hawley of Missouri — both have said publicly they will not support him. That means he’ll likely need Democratic support to survive. But so far, no Democrats have signaled they will vote to advance Ozerden, a close ally of White House acting chief of staff Mick Mulvaney.
“I can’t really think of anybody held over four times before,” said Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee, who will support Ozerden’s nomination.
Sen. Dick Durbin (D-Ill.), who has not decided how he will vote, called the multiple delays “very unusual” and “rare,” while Sen. Chuck Grassley (R-Iowa), who chaired the Judiciary Committee in the previous Congress, said he too could not recall holding over a nominee four times.
“I’d say that’s unusual, but don’t ask me how unusual,” Grassley said.
Ozerden’s path to the 5th Circuit has been a bumpy one. He has strong support from Mulvaney and his home-state Sen. Roger Wicker (R-Miss.), but some Republican senators have questioned his stance on religious liberty after he deemed a lawsuit against Obamacare’s contraceptive mandate premature.
Ozerden’s FBI background check has also fueled speculation about the status of his nomination. Prior to his confirmation hearing, Judiciary Committee staffers briefed Republican senators on the content of the FBI report, which typically happens when there’s a potential problem with a nominee.
Grassley said Wednesday that the FBI report was not an issue.
“I haven’t seen anything in the FBI reports that would cause me not to support his nomination,” Grassley said.
In addition, the Free Beacon published a story last month with allegations from Ozerden’s ex-wife that he violated rules for judicial conduct.
The delay in Ozerden’s confirmation is particularly unusual given the record-setting pace at which the Senate is confirming judicial nominees. If he is voted out of committee and heads to the floor, he could face additional obstacles to his nomination: conservatives will likely question the strength of the majority if they need Democratic support to get their nominees through.
Durbin is viewed as a potential “yes” vote but he has yet to commit. But other Democratic senators are more reluctant following an NAACP letter urging lawmakers not to confirm Ozerden, saying he had a “record of hostility to civil rights protections.”
Senate Judiciary Chairman Lindsey Graham (R-S.C.) described the NAACP letter as “over the top” last week and said he is “trying to fix that.”
Sen. Joni Ernst (R-Iowa), who was previously undecided on Ozerden, said Wednesday that she is “leaning favorably unless some other information comes out.”
But Sen. Marsha Blackburn (R-Tenn.) said Wednesday she is undecided. Sen. Ben Sasse (R-Neb.) also has not indicated how he will vote. A spokesperson for Sasse did not respond to a request for comment.
Mulvaney pushed for Ozerden’s nomination last year over the objections of the White House Counsel’s office at the time. And unlike many Trump judicial nominees, Ozerden lacks support from powerful conservative judicial groups like the Judicial Crisis Network.
When rumors of his nomination began last year, Carrie Severino, chief counsel of the Judicial Crisis Network, wrote in National Review that Ozerden had an “unusually high reversal rate” and that “it sure seems like we could do better than Judge Ozerden” in Mississippi.
But Ozerden disputed those claims during his July confirmation hearing and defended his record on religious liberty.
“The notion that I am hostile to religious liberty is simply not accurate,” he said.
Sen. Patrick Leahy (D-Vt.), who was chairman of the Judiciary Committee for most of President Barack Obama’s presidency, said he still needs to review Ozerden’s background before deciding on how he’ll vote.
Leahy said that when nominees are held over as much as Ozerden, it’s “usually if they have a lot of problems.”
“Especially when they’ve been rubber-stamping people, it means they must have a problem on their side,” Leahy said.
Burgess Everett contributed to this report.