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Trump Judicial Pick Would Undercut Obamacare, Groups Say (1)

March 31, 2020, 7:04 PMUpdated: March 31, 2020, 9:17 PM

Liberal leaning advocacy and health groups are urging senators to oppose confirming the latest White House pick for one of the most conservative federal appellate courts on grounds that he’d try to undermine Obamacare if given a chance.

In op-eds written in 2012, 2013 and 2014 when he was an attorney in private practice, Cory Wilson encouraged the Supreme Court to strike down the Affordable Care Act and called it “illegitimate” and “perverse.” Those comments indicate Wilson would rule against it if a related case came before him on the U.S. Court of Appeals for the Fifth Circuit, the groups said in a letter sent Tuesday to senators on the Judiciary Committee.

“Cory Wilson meets (Donald) Trump’s litmus test, and we have no doubt his commitment to undermining the law will put the health of millions at stake should he, as a judge, encounter litigation challenges to the ACA,” the groups wrote of the now-Mississippi state appeals court judge.

The Fifth Circuit has been a key stop for challenges to the embattled health law, representing districts in Texas, Louisiana and Mississippi. The Supreme Court is due next term to take up a challenge to a divided Fifth Circuit ruling that a provision requiring Americans to purchase health insurance is unconstitutional. Trump appointee Kurt Engelhardt was one of the two judges in the majority.

The letter opposing Wilson was coordinated by the Alliance for Justice, a liberal judicial advocacy group that has been a vocal critic of the president’s judicial nominees. Its signers include the NAACP, Protect Our Care, National Association of Social Workers, Bazelon Center for Mental Health Law, and People for the American Way.

The coronavirus pandemic “has revealed the glaring deficiencies in our health care system and our country clearly needs judges who will fortify it- not someone who has a history of undermining it,” said Fatima Goss Graves, president and CEO of National Women’s Law Center, which was one of the groups that signed the letter.

Wilson, who declined to comment through a spokesperson, has said previously that statements included in op-eds singled out for renewed criticism here wouldn’t impact his decision-making on the federal bench.

Mike Davis, founder and president of conservative judicial advocacy group Article III Project, which has advocated for Trump’s judicial picks, similarly said Wilson’s past comments don’t reflect how he’d rule in a particular case.

“As with any judicial nominee, private citizen Cory Wilson may have personal views, but Judge Cory Wilson has to set aside his personal views and apply the law as written,” Davis, formerly a chief counsel for nominations to former Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa).

Replacement Pick

The White House announced on Monday that Trump planned to nominate Wilson to the Fifth Circuit, the only true vacancy at the appeals court level. Trump and Senate Majority Leader Mitch McConnell, (R-Ky.), have prioritized appeals court vacancies over the past three years. Already more than a quarter of the judges at that level were tapped by Trump. If confirmed, Wilson would be Trump’s 52nd appeals court appointee.

Wilson’s circuit nomination replaces that of Halil “Sul” Ozerden, a U.S. district judge for the Southern District of Mississippi, after Republican Sens. Ted Cruz of Texas and Josh Hawley of Missouri opposed his nomination while it was pending in the Judiciary Committee.

Both raised concerns about Ozerden’s 2012 decision to grant the Obama administration’s motion to dismiss the Catholic Church’s petition in Catholic Diocese of Biloxi v. Sebelius, a case challenging the Affordable Care Act’s requirement that insurance plans cover contraception.

Wilson previously served as a Republican member of the state’s House of Representatives from 2016 to 2019. He also was a senior adviser and counsel in the state treasurer’s office and deputy secretary of state. He clerked for Judge Emmett Ripley Cox on the Eleventh Circuit and received his law degree at Yale.

Republicans who control the Senate have routinely dismissed liberal objections to Trump judicial selections, confirming just about all of them. It’s unclear how fast the chamber will work to address Wilson’s nomination since it’s been slow so far this year to move judges and is currently recessed until late April over the coronavirus pandemic. Davis believes Wilson will sail through the confirmation process.

Support for Wilson

Wilson has other support among conservatives, the lack of which hurt Ozerden. Kelly Shackelford, the president, CEO, and chief counsel for religious freedom advocate First Liberty Institute, said Wilson has had a “distinguished career.”

“We are confident that Judge Wilson will continue to protect the religious freedoms and First Amendment rights of all Americans,” Shackelford said.

Carrie Severino, president of conservative advocacy group Judicial Crisis Network took to Twitter after the White House announcement of his planned circuit nomination to praise his credentials.

“His career has been marked by courage; from his early days as at Yale to his years as a state legislator, he has been committed to conservative causes. I am confident that Wilson will bring this courage to the bench, and not be afraid to stand up for the rule of law,” Severino said.

Prior to his nomination to the Fifth Circuit, Wilson was nominated to the U.S. District Court for the Southern District of Mississippi and was going through the Senate confirmation process when elevated as a candidate for the Fifth Circuit.

Wilson received a qualified rating from the American Bar Association to serve as a district judge.

Confirmation Hearing

Wilson faced criticism from Democrats who questioned his public statements on hot-button issues like abortion, LGBT rights, and Obamacare during his Senate confirmation hearing Jan. 8.

In response to questions from California Sen. Dianne Feinstein, the top-ranking Democrat on the Judiciary Committee, about the same op-eds for the Madison County Journal referenced in the letter, Wilson said those statements wouldn’t impact his decision-making on the bench.

“At the time I wrote those columns, I actually was not in government or been elected yet to the legislature, so I was a commentator. I wrote for my hometown papers,” Wilson said.

“In terms of healthcare policy, there were a number of statements I made, again as more of an advocate, that would have no bearing on my role since I took the bench on the court of appeals,” he said.

Hawaii Democratic Sen. Mazie Hirono specifically targeted comments he made about President Barack Obama, New York Rep. Alexandria Ocasio-Cortez, and the Clintons on Twitter. Wilson said that he’d disable that account if confirmed.

(Updates with additional comments from Fatima Goss Graves and Mike Davis.)

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

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com