March 06,2019

Wyden Statement on Senate Floor on the Nomination of Chad Readler to the Sixth Circuit Court of Appeals

M. President, today the Senate is considering the nomination of another unqualified, far-right judicial nominee, Chad Readler, who is up for a seat on the Sixth Circuit Court of Appeals.

And I’ll be frank -- there isn’t much to recommend Mr. Readler. On the other hand, there is a lot that disqualifies him.

Any hint of credibility Chad Readler might have had as a judicial nominee disappeared the minute he put his name on the Trump administration’s absurd legal argument that protections for pre-existing conditions are unconstitutional.

In order to fully recap how ridiculous this argument is, let’s take a look at some recent history. The Supreme Court ruled in 2012 that the individual mandate was a tax, that it was constitutional, and that the Affordable Care Act would stand. It was a joyful day for the millions of Americans the ACA protected, but it was a tough day for the Republican strategists who were desperate to bring down the law at any cost. 

Next, in the process of jamming the Trump tax law through the Congress in late 2017, Republicans decided to revisit their old attacks on the Affordable Care Act. They passed an amendment that said there would be no penalty for people who fail to sign up for health insurance, even though health care freeloading drives up costs for everybody else.

Then, in 2018, Republican governors and attorneys general in 20 states cooked up maybe the silliest legal challenge to the ACA yet. The case is Texas v. United States. Here’s how their argument goes: First, they stipulate that the Supreme Court only upheld the ACA’s individual mandate because it was a tax. Next, they establish that the Trump tax law dialed the penalty associated with violating the individual mandate down to zero. That’s all reasonably accurate. 

But here’s where they get into the back-breaking legal acrobatics: They argue that because there is no penalty associated with violating the individual mandate, it is no longer a tax and is therefore unconstitutional. And finally, they argued that if the individual mandate is unconstitutional, the entire Affordable Care Act must be ruled unconstitutional as well.

Now in my view, a first year law student would get a failing grade for this kind of work in Constitutional Law class, but let’s stick to the history. 

The Justice Department has an obligation to defend the laws of the United States in court. But the Trump administration decided that didn’t matter. They sided with the Republican governors and AGs.

And in fact, the Trump Justice Department focused its attack specifically on ACA protections for pre-existing conditions. It said that the mandate was inseverable from two key protections in the law, which should therefore be struck down -- the rule that bars insurance companies from denying coverage due to pre-existing conditions and the rule that bars insurance companies from jacking up premiums based on pre-existing conditions. 

So let’s recap. A cadre of red-state officials who are out of good cases to bring against the ACA decided to bring a bad one. The Trump Justice Department -- at the president’s direction -- decided not to fight, but rather to take part in this preposterous attack on the law of the land.

And somehow, to the distress of millions and millions of Americans with pre-existing conditions, they got a Texas judge to rule in their favor. Fortunately the ACA protections remain in place while the case works its way through the courts.

Even some of my colleagues on the other side have objected to what the Justice Department did. Senator Alexander, who knows a thing or two about health care, said, “the Justice Department argument in the Texas case is as far-fetched as any I’ve ever heard."

So the Trump administration went ahead and threw out centuries of Justice Department tradition -- honored by Republicans and Democrats -- of defending laws as long as there is a non-frivolous argument in their favor. And they didn’t decide to throw out that vital legal tradition in a case involving some obscure, out-of-date statute. They chose to debase the Justice Department and undermine the rule of law in order to attack protections for pre-existing conditions. Chad Readler is the Trump appointee who stepped up and said, sure, you can put my name on that legal brief.

This case is so obviously political and meritless, three career Justice Department attorneys withdrew from it. One senior official -- an individual who has been praised for his 20 years of exemplary service -- even resigned over this matter. But Mr. Readler was A-OK with making himself the public face of this attack on basic protections for the 133 million Americans with pre-existing conditions.

The very same day, the president announced his nomination to sit on the 6th circuit. A lifetime appointment on the federal bench -- an immensely powerful position. If there’s somebody following this nomination at home, why wouldn’t they believe that’s a quid pro quo?

There seems to be an inexhaustible supply of far-right pretenders -- people who claim to be for protections for pre-existing conditions, only to turn around and fight to take them away.

So it ought to be clear to my colleagues in this chamber that this is not a routine nomination. Chad Readler thinks insurance companies should be allowed to deny care to people with pre-existing conditions. If you vote for him, you endorse that position. 

If Mr. Readler’s rap sheet began and ended with the legal brief attacking pre-existing condition protections, that would be disqualifying enough. Unfortunately there’s more.

He signed the Trump Justice Department legal brief green-lighting discrimination against LGBTQ Americans in the Masterpiece Cakeshop case. He defended the transgender military ban. He defended the Muslim ban. He defended family separation at the border.

Colleagues, Mr. Readler’s nomination is an example of what happens when the Senate abandons its long-held practice of consulting with home-state Senators on judicial nominees.

Since the early 1900s, it has been tradition for the Judiciary Committee to seek input from senators on judicial nominees from their home states. Lower-court nominees traditionally do not move forward until those home-state senators give the green light. They do so with what are called “blue slips.” In this case, the nominee is from Ohio, and Leader McConnell is blowing up tradition and moving this nominee forward over Senator Brown’s objections.

Back in 2009, when Republicans were in the minority, Leader McConnell and every member of the Republican Conference fought to protect this “blue slip” tradition. They wrote to President Obama and Senator Leahy, who was then the Chairman of the Judiciary Committee. Their letter said that the nominations process had become “needlessly acrimonious.”

They wrote, “We hope your administration will consult with us as it considers possible nominations to the federal courts from our states. Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

Here it is, just a few years later, and Senate Republicans are blowing up a century-old tradition of bipartisanship on judicial nominees. This issue came to a head last year when the Senate took up the nomination of Ryan Bounds to the Ninth Circuit despite objections from me and my Oregon colleague Senator Merkley. We blocked that nomination. It was the right thing to do.

The White House might want this body to act as a rubber stamp on nominees, but the Constitution of the United States demands more of us. So I want my colleagues to understand that by moving this nomination forward, they will be responsible for creating a new reality. The blue slip process as it worked for a century will be over. This breach of bipartisan protocol has further driven the judiciary to the partisan extreme. Following these actions by the Trump administration and the majority, I question whether the current structure of the courts will survive much longer.

Colleagues, Chad Readler does not deserve a lifetime appointment to the Sixth Circuit. The minute he put his name on the Trump administration’s absurd legal attack on protections for pre-existing conditions, he revealed his blind partisanship and poor judgement. He has defended discrimination in multiple forms. He has defended the indefensible abuse of vulnerable migrant families at our border. He cannot claim to meet the standard of impartiality and even-handedness that any of us would expect of judicial nominees.

I will vote against Chad Readler’s nomination, and I urge my colleagues to join me.