Defying public-health guidelines and putting senators at risk to elevate a favorite judge to the second highest court in the land, Mitch McConnell behaves like a man who knows his time is running out. He’s already filled some 200 federal judgeships with young, Federalist Society approved conservatives poised to overturn the Affordable Care Act.
With the election looking iffy for the president, McConnell has dropped all pretense of an unbiased judiciary in his rush to beat the clock. At a sparsely attended Senate Judiciary Committee hearing Wednesday morning, 37-year-old Kentucky District Judge Justin Walker, a McConnell favorite who’s trashed Obamacare in dozens of appearances on Fox News, defended his trail of partisan comments, including calling the Supreme Court decision to uphold the ACA “catastrophic” and “indefensible,” and mocking Chief Justice Roberts rationale ruling it a tax as “the worst words” handed down.
“Why in the middle of a pandemic would we support a nominee who would take health care away from millions of people,” asked California Democrat Dianne Feinstein. “It’s not the role of a judge to opine on health-care policy,” Walker replied, falling back on the standard dodge that if elevated to the DC Circuit Court, he would respect precedence and “go where the law leads.”
Illinois Democrat Dick Durbin asked Walker if he would recuse himself from cases having to do with the ACA in view of his critique of the law in multiple appearances on Fox News. Walker predictably declined, pledging fealty to the law. Durbin noted, “After 162 television appearances, it is painful to hear you say you have an open mind on the ACA.”
Connecticut Democrat Richard Blumenthal presented a poster with the picture of a 9-year-old constituent battling a debilitating disease and who would be uninsurable without the ACA’s protections for people with preexisting conditions. Walker recalled being a little kid when his mother battled breast cancer, and batted away any responsibility he might have as a judge other than to follow the law. “I don’t think Connor would be satisfied by that answer,” Blumenthal replied.
And neither would most Americans. Yet the same Republican senators who profess to uphold the ACA’s protections for people with preexisting conditions vote in lockstep for judges like Walker who are on the record with their contempt for the law. Three GOP women running competitive races for reelection are the worst offenders. Arizona Senator Martha McSally, Iowa’s Joni Ernst, and Maine’s Susan Collins routinely proclaim their support for Obamacare’s protections while voting for judges they know will overturn those protections if given the chance.
“They think they’re free votes,” says Daniel Goldberg, legal director for the liberal advocacy group, Alliance for Justice Action Campaign (AFJAC), which just launched an accountability project to expose the gap between what these senators say and who they’re voting for. “There should be consequences for these senators who through their votes put on the bench judges that will roll back protections that they tell their constituents they care about.”
It’s a dangerous double game in the midst of a pandemic when voters turn to government for information and reassurance.
“I am passionate about protecting people with preexisting conditions and forcing insurance companies to provide them health insurance,” McSally said in 2018, after voting numerous times to dismantle Obamacare. Now she’s trailing former astronaut Mark Kelly in her reelection bid and renewing her dubious pledge in an emotional ad with a cancer survivor, who she doesn’t identify as a former aide.
The AFJAC found that in her two years as an appointed senator filling the late John McCain’s seat, McSally voted for the judges they rated the worst on health care, LGBTQ rights, reproductive health care, worker and consumer rights, the environment, and voting rights.
“It is important that we protect people with pre-existing conditions, as we repeal and replace Obamacare,” Iowa Senator Joni Ernst said in a statement after a federal judge in Texas ruled Obamacare unconstitutional in December 2018, condemning the legislature to its current legal limbo. The Iowa Gazette’s Fact Checker recently found claims made against Ernst in an ad brought by Iowa Voices, a left leaning group, are “mostly true”: that she took money from special interests related to health care and voted to allow insurance companies to discriminate against preexisting conditions.
Ernst was one of 49 Republicans voting to repeal the ACA when McCain famously gave the bill a thumbs down, thwarting his party’s effort to kill Obamacare.
Maine’s Susan Collins, the most endangered of the GOP senators facing reelection, has been the most stalwart defender of Obamacare. “The ACA remains the law of the land, and it is the Department of Justice’s duty to defend it,” she says. “That is especially true during the current public health crisis our country is facing due to COVID-19.”
She wrote that in a letter to Attorney General William Barr in March, yet she voted for all but two or three of the judges out of the 15 who made it into the worst of the worst listings from the AFJAC. Her voting record is the most maddening to those who once looked to her as a leader, and who remind themselves that without her, there would be no Obamacare. She ensured its passage in 2010, and she joined McCain to vote against its demise in 2017.
The bills are coming due now for all those judges that Republicans high-fived to the bench before there was a pandemic and Obamacare became even more evidently a life-and-death matter.
Walker was confirmed for the District Court for Western Kentucky last October, and after only six months in that position, McConnell fast-tracked him for a seat on the U.S. Court of Appeals for the District of Columbia, second only to the U.S. Supreme Court in prestige and prominence, and as an arbiter of executive power.
Accompanied by McConnell, Walker met with Trump in the Oval Office in January about his promotion. “This guy is not being put on the bench as a neutral, unbiased judge,” says Greenberg, noting that several cases involving Trump and executive power are before the D.C. Court. “Trump and McConnell know exactly what they’re getting.”
At the District Court investiture in Louisville in mid-March, with the pandemic in full swing, McConnell recessed the Senate and together with another of his proteges, Justice Brett Kavanaugh, attended the ceremony. Walker recalled at age eight noticing his mother’s yard sign for McConnell. He went on to intern for McConnell and to clerk for Kavanaugh at the D.C. Court of Appeals, praising the dissent he wrote there as a “roadmap” to overturn Obamacare after the Court upheld it as constitutional.
“What can I say that I haven’t already said on Fox News,” Walker said in his remarks, drawing chuckles from the assembled audience and then turning serious, declaring, “In Brett Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream.” Walker will be filling the seat of a retiring Republican-appointed justice who hasn’t yet retired.
Early this year, McConnell put out the word that Republican-appointed justices nearing retirement should consider stepping down this year. The chief judge of the D.C. Circuit Court has asked Chief Justice Roberts to assign another circuit to look into a complaint from Demand Justice, a liberal advocacy group, that McConnell may have acted inappropriately in creating a vacancy that will not be official for 119 more days.
McConnell has vowed to “leave no vacancy behind,” and Jane Mayer in The New Yorker quotes a former Trump White House official saying, “McConnell’s telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October Surprise.”