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A project tracking federal judicial nominations and courts.

Defenders of Wildlife

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The House's Continued Assault on Endangered Species (Huffington Post, 07/29/14)
Jamie Rappaport Clark, President & CEO, Defenders of Wildlife: "Rep. Hastings knows that if he succeeds with these amendments, he will have taken a major step in undermining the ESA. Unfortunately for Hastings, the White House sees through the ploy, and today the Obama Administration released a veto threat saying that if the President were presented with H.R. 4315, his senior advisors would recommend that he veto the bill."

Opinion: The absurdity of [appeals] court’s health care ruling (Record [NJ] , 07/28/14)
Prof. Frank Askin: "the two Republican judges sitting on the U.S. Court of Appeals for the District of Columbia blindly adopted the bizarre argument of the law’s challengers that under a literal reading of the statute only state enrollees were entitled to the subsidies. On the same day, another federal appeals court sitting in Virginia unanimously ruled the other way. In that decision, Judge Andre Davis ridiculed the argument adopted by the two majority judges in D.C."

Sentinel Editorial: Two federal appeals panels diverge on health care reform (Keene Sentinel [NH], 07/28/14)
"Judge Thomas B. Griffith, in the D.C. ruling, guessed that Congress failed to include the federal exchange in the wording of that key clause intentionally, as an incentive to states to form their own exchanges. That seems quite a leap in logic. What the Democratic-controlled Congress unquestionably intended in 2010 — what was the very reason for constructing the law in the first place — was to provide affordable health care access to all Americans in every state. Any other interpretation of its intent is ludicrous."

DC Circuit Decision Isn't Just About Obamacare Subsidies: It Also Kills the Employer Mandate (Huffington Post, 07/28/14)
Terry Connelly: "What these two Republican jurists on the DC Circuit invented was a version of the ACA that even their own political party never considered to be reality: namely, a statute that contains its own self-destruct poison pill that would invalidate the very provisions the GOP most detested:"

EDITORIAL: WE SAY AFFORDABLE CARE ACT Subsidies clear intent of Obamacare (Austin American-Statesman [TX] , 07/27/14)
"The 4th Circuit's reasoned view is that no one seriously can doubt the law intends for subsidies to be available for individuals whether they buy insurance on an exchange created by a state or by the federal government....If the D.C. court's view prevails, then Congress would have to rewrite the law to save the subsidies available on the federal exchange. That would appear to be an impossible order, given that Republicans want to see the law repealed and would resist squaring the law's language with its obvious intent."

EDITORIAL: Unhealthy sign: Federal courts differ on ACA insurance premiums (Pittsburgh Post-Gazette [PA] , 07/27/14)
"On Tuesday, a panel of the U.S. Court of Appeals for the District of Columbia ruled 2-1 that the IRS could not authorize payments of premium subsidies in states that use the federal exchange.... The wording is something of a drafting error, but the intention of the law is clear and supports a broader reading. If the D.C. court reconvenes at full strength it may reverse itself, but the U.S. Supreme Court may decide to intervene. That is cause for concern, given its reputation for judicial activism of a conservative stripe."

Editorial: Grins and Grimaces (Knoxville News Sentinel [TN] , 07/26/14)
"A look at recent events in the news that pleased us ... .. and one that did not. Bat population drops: This summer Indiana State is leading a 12-week project to net bats in remote areas of the Smokies to see how white-nose syndrome, a fast-spreading disease that is wiping out species of cave-hibernating bats across the U.S., is affecting bats in the park. Researchers are especially interested in how it has affected the park's Indiana bats, a federally endangered species, and the northern long-eared bat, which is under review by the U.S. Fish and Wildlife Service to be listed as threatened or endangered."

EDITORIAL: Court ruling threatens viability of Obamacare (Asbury Park Press [NJ], 07/25/14)
"If that ruling by the D.C. Circuit Court of Appeals holds up through an appeals process that could end in the Supreme Court, millions of people with subsidized insurance could suddenly find their policies well beyond their means. ...Another circuit-court panel in Virginia on Tuesday on a similar challenge to Obamacare unanimously arrived at the opposite — and correct — conclusion that the law was not designed to limit subsidies to the state exchanges. ... The D.C. Court’s ruling is galling enough in that it likely was influenced by partisanship — the majority judges in the 2-1 vote were both Republican-appointed. ... It doesn’t deserve to die on a partisan judicial sword over an unintended language technicality."

EDITORIAL: Save the subsidies (Greensboro News & Record [NC], 07/25/14)
"The D.C. Circuit Court panel split hairs in its 2-1 ruling. ... Yet, Congress really did intend to offer subsidies to all Americans, not just to those in some states, according to a contrary ruling the same day by a unanimous panel of the Fourth Circuit U.S. Court of Appeals in Richmond.... Politics seems to influence the courts as well. The three judges on the Richmond panel were appointed by Democratic presidents. The two who produced the majority opinion in Washington were nominated by Republican presidents. If the full D.C. court hears the case on appeal, a reversal is expected because most of the court’s judges are Democratic appointees....Whether the enrollment mechanism is a federal or state exchange shouldn’t matter, and judges should apply common sense to their final decision."

EDITORIAL: A dose of absurdity in the Halbig ruling on Obamacare (Bangor Daily News [ME], 07/24/14)
"On Tuesday, a three-judge panel at the U.S. Appeals Court for the D.C. Circuit issued a flawed ruling that subsidies for health insurance coverage should never have been provided in states with federally run exchanges under the Affordable Care Act.... it’s odd the court would claim that what is basically a typo in a poorly written part of the law overrules what the law’s creators and implementers know to be true ... If the decision is upheld by the full D.C. Circuit (it probably won’t be), nearly all Maine residents who enrolled in a health plan through this state’s exchange would see an effect: They would pay nearly 80 percent more ... Eliminating health care for millions of Americans because of a drafting error? It sounds absurd to us."

EDITORIAL: Fix, don’t gut, health-care law; Congress and the courts can’t allow a bad ruling to deny affordable health insurance to millions of Americans  (Toledo Blade [OH] , 07/24/14)
"A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that consumers who buy insurance from federal exchanges created by the Affordable Care Act are not eligible for income-based tax credits ... ruled the two GOP-appointed judges who formed the panel’s majority.... If the D.C. circuit’s ruling stands, millions of Americans would face a hopeless choice between paying premiums they can’t afford or remaining uninsured. ... The full D.C. appellate court — and if necessary, the Supreme Court — should reverse the panel’s excessively narrow opinion.... The D.C. circuit’s ruling is wrong and worrisome, but need not and should not be the last word. Avoiding that outcome will require higher courts and Congress to do their jobs, rather than kill successful health-care reform by default."

EDITORIAL Our View | Affordable Care Act Obamacare ruling is nonsensical, and so is Sen. Ron Johnson's quixotic lawsuit (Milwaukee Journal Sentinel [WI], 07/24/14)
"The assault on Obamacare and common sense continues even as evidence piles up that the law is working for millions of Americans. But tell that to two Republican-appointed judges on the U.S. Court of Appeals in Washington, D.C., who ruled this week that the Affordable Care Act only authorizes subsidies for customers of marketplaces actually run by the states. In other words, Judges Thomas B. Griffith and A. Raymond Randolph ignored the clear intent of Congress and of the law. ...The administration plans to appeal the decision of the three-judge panel to the full 11-member appeals court. A decision by another federal appeals court sitting just down the road in Richmond, Va., meantime, found that the subsidies can be applied in all states."

EDITORIAL: Obamacare ruling: 2 judges, 6 words and millions at risk (Minneapolis Star Tribune [MN] , 07/24/14)
"[A] three-judge panel for the D.C. Circuit struck down the federal exchange subsidies in a 2-1 ruling ... This conclusion flouts a respected legal precedent that gives federal agencies wide latitude in interpreting ambiguous legislative language. It also flies in the face of common sense."

Do Republicans Warrant Being the Majority Party in Both Houses? (Huffington Post, 07/24/14)
Byron Williams: "Utilizing the rules of the Senate, Republicans have succeeded in blocking more of President Obama's judicial nominations than the combined total of his predecessors. Elections have consequences; at least they should, but not in the current GOP world."

EDITORIAL: Obamacare takes a hit; Conflicting rulings could end up in Supreme Court (Register Guard [OR] , 07/23/14)
"In the first ruling, the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that the tax credits provided under ACA can be offered only to states that set up their own marketplaces ... A split between the two appeals courts over the question of Obama­care subsidies would lead to nearly certain Supreme Court intervention. It’s possible the full D.C. appeals court, dominated by Democratic appointees, will overturn its panel’s ruling. Even if both full appeals courts uphold the subsidies, the Supreme Court could still intervene, with the outcome anyone’s guess. ... If the ACA’s promising reforms fall prey to a legal challenge and millions of Americans lose their insurance, the blame will lie with Republicans in Congress who have blocked efforts to fix the glitches and the unexpected consequences that are inevitable in any legislation as large and sweeping as the ACA."

A conservative judiciary run amok (Washington Post, 07/23/14)
E.J. Dionne Jr.: "By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government. Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law. There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood."

Editorial: Republicans waste energy fighting ACA Obamacare is still worth fixing (Salt Lake Tribune [UT] , 07/23/14)
"The two judges ruling in the case of Halbig v. Burwell trained their judicial microscope on a passage in the ACA that says the IRS can offer tax benefits to people who buy their health insurance through a state exchange. The court decided, against all logic, that that means the tax benefits are not open to people covered via the federal exchange.... The D.C. court’s reasoning was so clearly unreasonable that another federal appeals court explicitly rejected it in a case decided the same day. "

Brent Budowsky: Cruz could destroy GOP (The Hill, 07/23/14)
"The Cruz influence is almost entirely negative. For example, senators can prevent judicial vacancies from being filled by a practice called the blue slip. While Texas litigants have an urgent need for vacant judgeships to be filled, because of immigration and many other pressing matters, Cruz has abused the blue slip practice and kept many judicial chambers empty."

Editorial: Administration can't afford to lose on Obamacare subsidies (Los Angeles Times, 07/23/14)
"The full D.C. Circuit should follow the 4th Circuit's lead and reject the first panel's ruling, which wildly misconstrues Congress' intent."

Obamacare subsidy rulings highlight GOP intransigence [Editorial]; Our view: Congress could clean up ACA ambiguity if Republicans put their constituents' interest ahead of politics (Baltimore Sun, 07/23/14)
"On Tuesday, one federal appellate court read the Affordable Care Act to, rather nonsensically, prohibit the federal government from providing subsidies to consumers in states that chose not to set up their own health insurance exchanges and to use the federal one instead.... In the end, we expect the reasoning of the Richmond court to prevail if and when the issue is decided by a full panel of the D.C. [Circuit] Court of Appeals and/or the Supreme Court."

They're Not Harry Reid's Judges (Bloomberg News, 07/23/14)
Jonathan Bernstein: "the Senate minority blockaded three seats on the DC Circuit Court, and pledged to continue defeating any nominees for those positions for the duration of Obama's second term. Not only was this unprecedented, as far as I know the notion of reflexively blocking all presidential appointments had never occurred to a Senate majority before, let alone a minority. ...Given the election of a Democrat to the White House and a 55-to-45 Democratic majority in the Senate, Reid absolutely had to react. ...rom 2009 to 2013, Republicans began treating the routine nomination and confirmation of judges as some sort of extraordinary power grab. They accused Obama of “packing” the courts merely by exercising his constitutional obligation to appoint judges to vacancies. That intransigence made the filibuster untenable. When Republicans refused to abide by longstanding institutional norms, majority-imposed reform became necessary for the Senate to function at all."

Editorial: Subsidies essential to health care reform (Tampa Bay Times [FL], 07/22/14)
"It defies logic that Congress intended only to provide the premium subsidies in states that created their own marketplaces, and the courts should keep them in place.... Yet two conservative judges on a three-judge federal appeals court panel in Washington concluded Tuesday that the federal law only allows the subsidies to be offered in states with their own exchanges. They focus on one poorly worded provision in the complicated law and ignore its overall intent, rejecting the government's argument that their narrow reading would produce absurd results.... If the full appeals court panels examine fairly the intent of the Affordable Care Act, they will conclude the subsidies are legal and this issue will never reach the U.S. Supreme Court."

Editorial: In the courts, again, with Obamacare (Anniston Star [AL] , 07/22/14)
"Critics of President Obama’s attempt to deliver affordable health insurance to all Americans can’t build their arguments on moral grounds. If so, they lose. So they’re taking a legal approach in hopes of undermining the Affordable Care Act with a barrage of paper cuts. ...If the D.C. court’s ruling is eventually upheld, thousands of Alabamians might lose the health insurance they’ve received through the ACA. In no way, under no circumstance, is that good for the state or its people."

EDITORIAL: An Ominous Health Care Ruling (New York Times, 07/22/14)
"Under the decision of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, people living in 36 states, mostly led by Republican governors or legislatures, would be in jeopardy ... Two Republican-appointed judges on the panel, taking an incredibly narrow and blinkered view, concluded that the language in the law allows the Internal Revenue Service to provide tax-credit subsidies only on exchanges established by the states. ...The third judge, a Democratic appointee, called the majority opinion what it clearly was, a “not-so-veiled attempt to gut” the health care law. ... The Obama administration is expected to appeal the decision to the full appellate court, whose 11 members include seven Democratic and four Republican appointees. What is needed is common sense in interpreting the law, not ideological opposition to Obamacare. The three-judge appeals panel on the Court of Appeals for the Fourth Circuit, based in Richmond, while acknowledging ambiguities in the language of the law, unanimously and properly upheld the subsidies as a permissible exercise of discretion by the I.R.S. "

EDITORIAL: Obamacare ruling ignores Congress' intent: Our view; In the context of the entire law, it's clear that Congress never meant to limit subsidies to state exchanges. (USA Today, 07/22/14)
"The 2-1 opinion — two Republican-appointed judges outvoted one judge appointed by a Democratic president — was not what the Obama administration wanted, but it was hardly fatal. It could be overturned on appeal to the full circuit court....The other courts to rule on this challenge, including a federal appeals court in Richmond later on Tuesday, threw it out — appropriately, in our view.... Legislation as broad and ambitious as the Affordable Care Act always includes unintentional errors and inconsistencies"

EDITORIAL: D.C. Circuit Court ruling on Obamacare was wrong — but the 4th Circuit got it right (Washington Post, 07/22/14)
"Blame the D.C. Circuit, too, for an unwise and unnecessary ruling that would dismantle much of the Obamacare system that has been slowly taking hold. The court would have us believe that the law’s text is so clear that it requires a bizarre, counter-productive result. In fact, on the point in question, the text is a vague mess and the court’s interpretation of the language is at odds with the law’s obvious intent and with normal deference to executive interpretation — as the Fourth Circuit more sensibly ruled at almost the same moment....The full D.C. Circuit should reconsider and reverse its panel’s 2-to-1 ruling. Then the Supreme Court should let the administration’s interpretation stand, instead of taking the case and prolonging the ACA’s legal limbo."

EDITORIAL: Judges show partisanship in striking ACA subsidies (News & Observer [NC], 07/22/14)
"When the history of the Affordable Care Act is written, the figures who will look the most obstructive and shortsighted are not the tireless House Republicans who voted time and again to repeal the law or the state attorneys general who sued to block the law. The worst light will fall on those judges who failed in their duty to provide a fair reading of Congress’ intent and instead substituted their own personal and partisan views. First among this group will be the conservative members of the U.S. Supreme Court who voted in favor of declaring the law unconstitutional. Now two Republican judges on the Washington, D.C. Circuit Court have added their names to the roster of future ignominy. Judge Raymond Randolph, and Judge Thomas Griffith formed the majority in a 2-1 ruling ... the judges in the majority in the D.C. Circuit decision contorted their judgment to fit that political aim. Fortunately, the D.C. Circuit ruling is likely to be reversed on appeal to the entire D.C. Circuit Court where Democrats hold a majority."

Diversity Milestone for Obama's Judicial Nominees (People For blog, 07/21/14)
"Ronnie White is the 100th person of color that President Obama has made a federal circuit or district court judge. That is more than twice the number at the same point in the George W. Bush Administration, and far exceeds Bush's total for his entire eight years in office. In fact, President Obama has had more minority judges confirmed than any other president."

No Winners, Only Losers, When it Comes to Judicial Vacancies (Brennan Center for Justice at NYU School of Law, 07/21/14)
Andrew Cohen: "What the conversation about judicial nominations sorely lacks is a broader look at the constitutional responsibility of the executive and legislative branches to consistently ensure that the third branch, the judiciary, has enough judges to ensure that the nation’s rule of law is fairly and evenly administered....there is no equal justice under law if people in this jurisdiction are treated differently from people in jurisdictions whose federal courts are fully-staffed. In this respect, the Brennan Center report also is important because of the candor it includes from judges most directly impacted by the nation’s empty benches."