Votes On Anti-ACA Judges Expected As Soon As Senate Returns
It seems like ages ago that a Republican-controlled Congress failed to “repeal and replace” the Affordable Care Act, with Sen. John McCain casting the deciding vote on a bill that had no real “replacement” to offer. President Trump and Senate Majority Leader Mitch McConnell, however, never stopped waging war on access to health care, supporting frivolous lawsuits to overturn the ACA while stacking the courts with anti-ACA judges. Now, even in the midst of an unprecedented national health crisis, Trump and McConnell have doubled down on this effort with the nominations of Cory Wilson and Justin Walker to be circuit court judges.
While it’s absolutely vital to continue educating the public how best to protect themselves during the coronavirus pandemic, I hope you’ll also see fit to editorialize on Trump’s campaign to undermine the very health care so many are dependent upon right now. According to Protect Our Care, overturning the Affordable Care Act would cause a minimum of 20 million people to lose their coverage, and it would eliminate protections for the 130 million people who have preexisting conditions. This memo will brief you on the administration’s efforts to attack the ACA through the courts, the records of these nominees, and what to expect when the Senate eventually resumes its work and begins considering their confirmations.
Long before Trump was elected, he promised he would only appoint judges who “will do the right thing unlike Bush’s appointee John Roberts on ObamaCare” — in other words, who will overturn the ACA. By changing Senate rules and eroding norms to circumvent Democrats’ opposition, Trump and McConnell have added nearly 200 judges to the federal bench, including two Supreme Court justices, and Trump has very much followed his promised litmus test. Dozens of these judges have been on record openly opposing the law.
Since Trump has already filled 51 appeals court seats and flipped three circuits to have a majority of Republican-appointed judges, there are only two remaining appeals court seat vacancies for now. Last week, the president nominated two judges who have both vehemently called for the entire ACA to be thrown out.
Cory Wilson, nominated to the Fifth Circuit Court of Appeals, is an ultraconservative politician who called the ACA “illegitimate” and “perverse,” and advocated for the Supreme Court to overturn it. He also opposed expanding Medicaid in Mississippi, which would have provided coverage to an additional 100,000 Mississippians. The Fifth Circuit has already kept alive a lower court decision declaring the entire ACA unconstitutional, which will be heard by the Supreme Court this fall. It means that Wilson could very well weigh in on the issue in the future. A coalition of health care groups has already opposed his nomination.
Justin Walker, nominated to the Court of Appeals for the DC Circuit, has served as a federal judge for mere months, having only been confirmed to that position last year. Writing in The Federalist, an outlet that has now repeatedly advocated for letting people die of COVID-19 to protect the economy, Walker called the Supreme Court’s decision to uphold the ACA “indefensible.” He praised Brett Kavanaugh, who he had clerked for on the DC Circuit, for having written the “roadmap” for courts to overturn the law.
On March 13, as much of the country was already engaging in social distancing to protect their communities and the House was hard at work on what became the stimulus package, McConnell and Kavanaugh flew to Kentucky for a victory lap: Walker’s investiture as a district court judge. Mocking the coronavirus safety precautions already being promoted, Walker fist-bumped both men.
Meanwhile, Trump has doubled down on his support for the lawsuit currently awaiting Supreme Court consideration that seeks to overturn the ACA. On March 22, Trump reiterated, “What we want to do is terminate it.” Despite repeatedly claiming that he and the Republican Party still want to protect people with preexisting conditions (including at the State of the Union), the lawsuit makes no effort to carve them out, and there is no plan to replace them should the Supreme Court, in fact, “terminate” the ACA.
Last month, Senate Republicans refused to answer questions about the lawsuit and the impact it could have on health care across the nation. They insisted they could not comment on a judicial proceeding and feigned support for their constituents’ access to health care. Their records of overwhelmingly supporting Trump’s anti-ACA judges tell a crystal clear story about how they really feel. Not only did they support Walker and Kavanaugh, they also voted to confirm nominees like Chad Readler, who literally wrote the Trump administration’s brief supporting the anti-ACA lawsuit, and Sarah Pitlyk, who called the Supreme Court’s opinion upholding the ACA a “disastrous ruling” and “unprincipled decision.”
McConnell has made clear he plans to push through as many judges as he can while Trump’s still in office. In fact, it’s just about the only thing the Senate has taken up while ignoring scores of important bills from the House. As the pandemic was sweeping the nation, McConnell appeared to be urging currently sitting judges to consider retirement before November so that Trump can fill those seats too.
Last week, McConnell refused to make any commitment to additional coronavirus relief legislation, but he did promise that he will continue to confirm more of Trump’s judicial nominations as soon as the Senate returns from its recess. “My motto for the rest of the year is to leave no vacancy behind,” he said.
The coronavirus pandemic is getting worse. We haven’t reached the apex of “the curve,” and we do not yet know how just how much this crisis will test the limits of our health care system. How can we possibly trust an administration to protect us when it’s still simultaneously salivating at opportunities to further block people’s ability to access the care they need and deserve?
We ask that you please consider using the power of your pen to shine a light on the way Trump’s administration and Senate Republicans are still attacking health care behind the scenes, specifically:
- The egregious records of nominees like Walker, Wilson, and the many other anti-health care judges that have already been confirmed,
- The way Trump and McConnell have continued their campaign against health care during a national health crisis, and
- How support for the lawsuit seeking to overturn the ACA cannot be justified by unsubstantiated claims of standing by people with preexisting conditions.
Whatever comes after this pandemic, we cannot allow our leaders to further erode access to health care without being held accountable for it.
believes that all Americans have the right to secure justice in the courts and
to have their voices heard when government makes decisions that affect their
lives. We are a national association of 120 organizations, representing a broad
array of groups committed to progressive values and the creation of an
equitable, just, and free society.
Trump’s Attacks on Our Justice System: 2017–2019, an analysis of Trump’s judicial nominations and the Senate’s erosion of the norms of the confirmation process.
On The Issues: Access to Health Care, a round-up of Trump’s nominees who express oppose expanding access to health care.
AFJ’s report on Justin Walker’s record.
AFJ’s letter opposing Walker’s previous nomination.
AFJ’s report on Cory Wilson’s record.
20+ health care groups’ letter opposing Wilson’s nomination.
Columns and Editorials
Ms. Magazine: “Trump Wages War on the Affordable Care Act in the Midst of the COVID-19 Pandemic” (4/20/20)
Medium: “Senators’ Position On ACA Lawsuit Is Crystal Clear” (3/13/20)
Alliance for Justice Action Campaign: “From Twitter troll to federal judge: The case against Cory Wilson” (2/6/20)
Daily Kos: “How Senate Republicans Are Dismantling Your Health Care Through The Courts” (1/3/20)
Recent Press Statements
On Walker’s nomination. (4/3/20)
Joint statement from health care groups opposing Wilson’s nomination. (3/31/20)
On Wilson’s nomination. (3/30/20)
On the tenth anniversary of the Affordable Care Act. (3/23/20)
On McConnell prioritizing Walker’s investiture over protecting people from the pandemic. (3/16/20)