The United States Law Week

Fifth Cir. Pick Says Obamacare, Voter ID Writings Were Politics

May 20, 2020, 10:39 PM

President Donald Trump’s latest nominee to a longstanding vacancy on arguably the most conservative appellate court explained his past writings critical of Obamacare and of scrutiny around voter ID laws as commentary on “live items for debate” when he was active in politics, and personal views wouldn’t influence his work as a federal judge.

“As a matter of policy and politics, I fully recognize that my role as a judge is completely different than the role as a commentator or as a politician in the legislative branch of government,” Cory Wilson said at his confirmation hearing before the Senate Judiciary Committee on Wednesday.

Wilson is up for a seat on the U.S. Court of Appeals for the Fifth Circuit that has been vacant since 2017. The previous nominee for that vacancy faltered over the concerns of two Republican senators, Ted Cruz of Texas and Josh Hawley of Missouri, that he wasn’t conservative enough.

Neither lawmaker expressed those concerns with Wilson at his hearing, congratulating him on his nomination and asking routine questions about conservative judicial philosophy. His confirmation is likely.

Members of the committee fell along party lines about whether Wilson’s views, documented in op-ed and Tweets, would impact his decision-making and impartially if confirmed to the New Orleans-based appellate court. Wilson is a current Mississippi state judge and a former state legislator.

While Democrats said his writings critical of Obamacare, LGBTQ issues, and questioning voter suppression claims were cause for concern, Republicans agreed with Wilson that his political leanings would be separate from his role as a judge.

Judiciary Chairman Lindsey Graham, R-S.C., bristled at the scrutiny Democrats applied to Wilson’s conservative leanings.

“Who do you think we’re going to pick? We’re going to pick people that think like us that will be good judges. And when you get in charge, if you ever do, you’re going to pick people from your world,” Graham said.

Sen. Dianne Feinstein, the top Democrat on the panel, specifically raised op-eds Wilson wrote in 2012, 2013 and 2014 when he was an attorney in private practice, encouraging the Supreme Court to strike down the Affordable Care Act. He called it “illegitimate” and “perverse.”

Health care was a reoccurring issue for Democrats who said they didn’t want to confirm a nominee critical of the ACA during a pandemic.

That echoed criticism from another confirmation hearing. During the May 6 proceeding for U.S. Appeals Court for the District of Columbia Circuit nominee Justin Walker, his past comment about Obamacare were also under scrutiny from the Democratic members.

“It is interesting to note that in the Senate Judiciary in the last three weeks, this is the second time we’ve entered a nominee for a circuit court position who has spent so much of his life criticizing the Affordable Care Act,” Sen. Richard Durbin, an Illinois Democrat, said.

Walker’s past writings also struck a chord with Durbin. Wilson cited him in a 2012 op-ed for his work on the Judiciary Committee investigating voter suppression, calling hearings his subcommittee held “show hearings.”

Republican members of the committee took issue with the criticism, saying that judges should separate any political opinions they have in the first place.

“I personally struggle with any suggestion that your qualification or lack thereof to serve on the U.S. Court of Appeals for the Fifth Circuit has or ought to be influenced in any way shape or form by your political views,” Sen. Mike Lee a Republican from Utah said. If judging is done right, Lee added, politics shouldn’t be part of it.

The hearing occurred as the Senate confirmed two more of Trump’s nominees for federal district courts and shortly before he announced a new selection.

Anna M. Manasco was confirmed to the Northern District of Alabama, 71-21, and John F. Heil III to the Northern, Eastern and Western Districts of Oklahoma, 75-17. That raised Trump’s total confirmed district and appeals judges to 192.

The White House also announced Alabama Solicitor General Edmund LaCour is the planned pick for the Middle District of Alabama.

LaCour is a former Big Law attorney, having worked at firms like Kirkland & Ellis, Bancroft, and Baker Botts. He is one of many judicial picks who worked as a state solicitor general, and succeeded Trump Eleventh Circuit appointee Andrew Brasher in his current role.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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