Jurisprudence

McConnell Is Pushing Through Another Trump Judge Who’s Gunning for Obamacare

McConnell, wearing a mask, listens as Trump speaks
Senate Majority Leader Mitch McConnell and President Donald Trump at a press conference in Washington on Tuesday.
Brendan Smialowski/Getty Images

Last Friday, the House of Representatives passed a new coronavirus relief bill loaded with health care funding for patients and medical providers affected by COVID-19. Senate Majority Leader Mitch McConnell called the measure “dead on arrival.” McConnell says he feels no “urgency” to spend more money mitigating the pandemic. But he does feel an urgent need to confirm as many federal judges as possible before the 2020 election. The Senate has confirmed eight judges since the first cases of COVID-19 were reported in the United States. And on Wednesday, the Senate Judiciary Committee held hearings for another: Cory Wilson, Donald Trump’s nominee to 5th U.S. Circuit Court of Appeals.* Like so many other nominees, Wilson appears to have been nominated, in part, because of his fierce hostility to the Affordable Care Act. In the midst of a public health crisis, McConnell is not just refusing to aid our struggling health care system. He is installing judges who want to tear it down and strip coverage from more than 20 million Americans.

The 5th Circuit seat for which Wilson is nominated has a troubled history. Trump originally nominated Halil Suleyman Ozerden, a federal district court judge, to the seat in 2019. Ozerden is a George W. Bush appointee and a member of the Federalist Society with a record of conservative rulings. Republican senators frequently claim they are simply seeking judges who will apply the law as written, not demanding partisans who will follow their party platform. Yet multiple Republicans deemed Ozerden insufficiently loyal because he threw out a challenge to the ACA’s contraceptive mandate. Ozerden’s 2013 decision was narrow; he simply found the lawsuit premature because the Obama administration was still amending the rules. The ruling was enough, however, to convince Republicans that Ozerden wouldn’t toe the GOP party line.

In response, Trump abandoned Ozerden and chose Wilson for the seat instead. A former Republican member of the Mississippi House of Representatives, Wilson has already been nominated to a federal district court in Mississippi, but was never confirmed. He has served on the state’s Court of Appeals since 2019. (The American Bar Association rated Wilson “well qualified” because of this service.)

Wilson might as well have been hatched in a Federalist Society lab; his lengthy political record reveals a deep commitment to Republicans’ political goals. Alliance for Justice, a progressive group that has opposed most of Trump’s judicial nominees, compiled a record of Wilson’s many controversial positions. Examples of his partisanship are not difficult to find. Wilson called Barack Obama “King Barack,” “petty and small,” “a fit-throwing teenager,” the “Anointed One,” a “radical leftist,” and “shrill, dishonest, and intellectually bankrupt.” He charged Obama with running the “most paranoid and politicized White House since Nixon.” He has also called Hillary Clinton “Crooked Hillary,” “criminal and clueless,” and either “felony dumb or willfully ignorant.” And he falsely accused her of destroying documents under subpoena.

Then there’s Wilson’s loathing for the ACA. He has called the law “illegitimate,” “perverse,” “big intrusive government” that “is less about healthcare than it is about redistribution of wealth and power.” In 2012, he declared: “For the sake of the Constitution, I hope the Court strikes down the law and reinvigorates some semblance of the limited government the Founders intended.” He has tweeted about his enmity toward the ACA 30 times.

It’s not just the inflammatory and inappropriate rhetoric that makes Wilson’s nomination alarming. Wilson says he supports “the complete and immediate reversal” of Roe v. Wade. He voted to ban abortions after six weeks of pregnancy in Mississippi. He also voted to defund Planned Parenthood and urged the Supreme Court to let states regulate abortion clinics out of existence.

While working in the Mississippi Secretary of State’s Office, Wilson defended voter ID laws and mass purges of voter rolls. He has repeatedly (and falsely) claimed that voter fraud is a serious problem in Mississippi, suggesting that there is a “dead vote”—i.e., extra votes illegally cast under the names of dead people. He vigorously opposes marriage equality and supports state laws that legalize discrimination against LGBTQ people. And he opposes almost all gun safety regulations.

With these views, Wilson will fit right into the 5th Circuit today. Under the sway of Trump’s five previous nominees to the court, the 5th Circuit has veered far to the right. It has defied Supreme Court precedent to uphold abortion restrictions, disparaged transgender people and their rights, questioned long-standing gun safety laws, and upheld suppression of free speech and voting rights. In an overtly partisan decision, the 5th Circuit also embraced the absurd argument that courts must abolish much if not all of the ACA because Congress zeroed out the individual mandate.

Even if the Supreme Court rejects this particular challenge next year, Republicans will surely continue to bring lawsuits asking the courts to do what Congress could not: repeal key provisions of Obamacare. At Wednesday’s hearing, Democratic senators raised the possibility that Wilson would embrace such a suit, noting his profound hatred of the ACA. “If you’re confirmed,” Sen. Dianne Feinstein asked, “how can a person seeking to enforce rights under the ACA have confidence that you will rule fairly in light of your view?” Wilson claimed he spoke only “as a matter of policy and politics.” Feinstein noted: “You have advocated striking down the act. Are you telling us today that that will not be your position?”

Wilson wouldn’t say, so Feinstein asked again: “Would it be your intent to strike down the Affordable Care Act?” Wilson said no—but clarified that he meant he would apply the 2012 Supreme Court decision upholding the law. A future challenge that raised different arguments might not fare so well before his court. When Sen. Richard Blumenthal pointed out this evasive language and asked Wilson to affirm that he would uphold the individual mandate, he refused.

Sen. Dick Durbin wondered if the nominee had a change of heart due to the pandemic. “In light of all the Americans who’ve died because of the coronavirus,” Durbin asked, “in light of our national health emergency, do you have at least a moment of pause in your efforts to stop the extension of health insurance to so many Americans?”

Wilson hedged. “During my time in public service, before becoming a judge, I feel like I always got the importance of health care,” he told Durbin blandly. “I talked about how important health care was for not only patients who need access to health care but also providers, as an economic driver in Mississippi.” He also asserted that he made his contentious comments in “the heat of political campaigns.” They “came at a time before I was ever a judge,” Wilson continued. “The role is distinct. It’s very different.”

Several Democrats skipped the hearing, allowing Wilson to skate by on platitudes without much scrutiny. As usual, Republicans failed to ask him any difficult questions, instead trusting this longtime member of the Federalist Society to vote how they want. A similar dynamic played out earlier in May at a hearing for Justin Walker, whom Trump nominated to another federal appeals court. Walker also has a lengthy record of opposition to the ACA, and he is also gliding down the path to confirmation.

Durbin was plainly distressed by this state of affairs. “I find it ironic,” he told Wilson, “that in the midst of this public health crisis, the Republicans have brought us two nominees for the second-highest level of federal courts in a matter of three weeks who have such disdain for the Affordable Care Act, which provides protections for millions of Americans.” Ironic or not, it is certainly no accident. Republicans’ policy plans hinge on capturing the courts; much like the party’s gun platform is to confirm judges who’ll strike down gun control, their health care plan is to confirm judges who’ll strike down Obamacare. Long after Trump leaves office, Wilson, Walker, and their allies will continue to implement his agenda from the bench. And Senate Republicans won’t let a little thing like a pandemic stop their takeover of the judiciary.

Correction, May 20, 2020: This piece originally misspelled Cory Wilson’s first name.