Another powerful reminder of why we must fight for the courts

Another powerful reminder of why we must fight for the courts

- in Weekly Briefing


If yesterday’s competing Obamacare decisions don’t spur you to action, nothing will

It was just a few weeks ago that the U.S. Supreme Court’s disastrous Hobby Lobby birth control decision provided a wakeup call to caring and thinking people as to why they must pay much more attention to who gets appointed and confirmed to serve on the federal courts. As was noted in this space at the time:

For decades, progressives have devoted precious little political energy and capital to the composition of the courts – opting rather to defer to bar associations and other ‘neutral’ organizations. Notwithstanding the occasional ideological battles…it is conservatives who have made influencing judicial nominations a top priority….If progressives want to push back against the conservative efforts to control the judiciary and, ultimately, secure the reversal of rulings like Burwell v. Hobby Lobby, the path is clear and the time for action is now.”

Yesterday, we got an even more powerful reminder of the vital importance of the political trench warfare over the composition of the judiciary when competing U.S. Circuit Courts of Appeal issued diametrically opposed verdicts on one of the central components of Obamacare.

Here was NC Policy Watch Courts and Law Reporter Sharon McCloskey writing yesterday morning on The Progressive Pulse blog at around 10 o’clock:

The U.S. Court of Appeals for the D.C. Circuit ruled that tax credits under the Affordable Care Act can only be available to people who enrolled in new exchanges set up in states — not those who enrolled in the default federal program.”

Two hours later, she wrote this in a new post:

A unanimous panel of the Fourth Circuit in Richmond has upheld the availability of Affordable Care Act tax credits to health insurance purchasers on both state exchanges and the federal exchange. The decision in King v. Burwell comes just hours after the D.C. Circuit Court of Appeals issued a contrary ruling in Halbig v. Burwell.

It doesn’t get much clearer than this

For those who had any doubt about the importance of rolling up one’s sleeves and taking on the right-wing in the battle for control of the courts, these decisions make a clear and undeniable case. This truth is only underscored by the downright tortured nature of the majority ruling in the D.C. Circuit case. As experts at the Center for American Progress noted in their initial critique:

The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through ‘an Exchange established by the State.’ [Judge] Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, ‘a federal Exchange is not an “Exchange established by the State,”’ and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.”

In other words, the D.C. Circuit opinion is just the latest in a long and growing line of hard right judicial decisions that make past complaints about so-called “activist” liberal judges seem laughable. Today, it is conservative activist judges who are taking it upon themselves to invalidate scores of duly enacted laws and regulations – almost always in the service of large corporations, the religious right or both.

The unanimous decision in the Fourth Circuit offered this stinging rebuke to the right-wing argument:

What [the challengers of the law] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.”

So, what to do?

The good news in the immediate aftermath of yesterday’s rulings – at least here in North Carolina – is that things on the ground are unaffected. As the Obamacare enrollment experts at Get Covered America noted in a statement:

The end result is that nothing changes for the 357,584 North Carolinians that already enrolled in insurance on the federal marketplace and nothing changes for those who can still enroll now.”

And there is cause for optimism in the D.C. Circuit as well. Despite yesterday’s 2-1 decision, a rehearing en banc before all 11 judges – some of whom have only recently been confirmed after a determined push by the Obama administration and progressive advocates – could well lead to a reversal.

That said, of course, the federal judiciary as it’s presently constituted is a heck of a thin reed upon which to hang one’s hat. Nearly six years of shameless conservative obstructionism of Obama’s appointments have left scores of vacancies on various Circuit Courts of Appeal and at the District Court level. As the good people behind the Why Courts Matter website report: “This year, more than 195 million people — over 60 percent of the U.S. population — lived in a community with a federal courtroom vacancy.”

North Carolina is home to two such District Court vacancies right now – one in the Eastern District that’s the oldest in the country (and that’s been the subject of numerous articles on this website for years) and one in the Middle District that’s quite new. In each case, however, important issues of judicial diversity are implicated.

In the Eastern District, President Obama’s nominee – federal prosecutor Jennifer May-Parker – would be the first person of color and only the second woman in the history of the District. In the Middle District, the newly-retired Judge, James Beaty, is the only person of color currently serving on the federal bench in North Carolina.

Unfortunately, at this point, the prospects for filling either position with a high quality judge who reflects the increasingly diverse population of our state appears dim. Senator Richard Burr has blocked the May-Parker nomination without explanation for more than year and given the GOP-created backlog of this and other seats around the country, the hope of getting a worthy Beaty replacement vetted, nominated and confirmed by the end of the President’s term seems like a longshot.

The only hope

All of this could change of course – even overnight – if one thing happened. Simply put, enough caring and thinking people must finally grasp the urgency of the crisis and then get off their butts to do something about it. These activists must make our elected leaders understand that they will not be allowed to play obstructionist games with the courts. They must inform officials like Senator Burr that Americans elected President Obama twice and have a right to expect that his judicial nominees who pass basic muster when it comes to competence will be speedily considered and confirmed by the Senate.

Recently, a coalition of North Carolina advocacy groups took such a step when they wrote U.S. Senate Judiciary Committee Chairman Patrick Leahy to demand that he dispense with the absurd Senate “blue slip” rule that has enabled Senator Burr’s one-man blockade. May it be just the first note in a loud and growing chorus.

If you’d like to learn more about the growing progressive movement to take back the courts and the political initiative surrounding the process that determines who gets to serve, visit, check out the action links and share them with your friends and neighbors.

The future of our democracy likely depends upon it.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
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