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Judge Who Invalidated Obamacare Has Been A 'Go-To Judge' For Republicans, Critics Say

Dec 19, 2018
Originally published on December 20, 2018 8:11 am

U.S. District Judge Reed O'Connor has a history of siding with Republicans on ideologically motivated lawsuits. His ruling last week, in which he sided with the GOP on a challenge to the Affordable Care Act, was not a one-off.

In fact, critics say, his history is ultimately why that case was before him in the first place.

By all accounts, O'Connor's ruling is sweeping. It says the entire health care law became invalid when Congress zeroed out, in 2017, the tax penalty for Americans who don't have health insurance — a penalty that had been tied to what's known as the law's individual mandate that nearly everyone have insurance.

"I think he went too far in rejecting the entire law," says Josh Blackman, a conservative legal scholar and professor at the South Texas College of Law in Houston. "I think he could have stopped short and simply severed the Obamacare mandate."

While O'Connor's decision may seem a bit extreme to some legal scholars, it wasn't surprising.

Justin Nelson, a law professor at the University of Texas, Austin, says if you know anything about O'Connor's past rulings, this was predictable.

"In case after case," Nelson says, "what he has shown is that he has tended to side with the Republican attorneys general who are bringing ideological suits."

Nelson recently ran an unsuccessful campaign to oust Texas Attorney General Ken Paxton, who led this multistate legal challenge to the health care law. Nelson says Paxton and the other Republican attorneys general have filed lawsuits in the U.S District Court for the Northern District of Texas because they know there's a good chance they'll get O'Connor as the judge.

"Judge O'Connor has been the go-to judge for Ken Paxton and Republican attorneys general who want to file ideological suits in any court across the country," Nelson says. "Reed O'Connor is their best shot to get a ruling that they like."

O'Connor, who did not respond to NPR's requests for comment, was a Republican staffer on Capitol Hill before he was nominated to the federal bench by George W. Bush in 2007. So far, he has had to weigh in on at least a couple of contentious issues.

For example, O'Connor is known for striking down an Obama-era rule that protected transgender students. In that case he also sided with Paxton, who filed that legal challenge.

"They've done this over and over again on the hope that Judge O'Connor would rule on behalf of an ideological agenda," Nelson says. "And I don't think that is proper. I don't think that is right."

Paxton has filed lawsuits in other courts, too. He filed challenges to Obama-era immigration laws in a court in South Texas, which also has a reliably conservative judge on the bench.

However, Blackman believes criticism of this practice is "overblown."

"All lawyers generally file the case where it leads to the best chance of success," Blackman says. "And to the extent that [there's a] criticism — that's criticism of the attorney general and not of the judge. The judge doesn't control which cases come to him."

Furthermore, because O'Connor is getting a lot of ideological lawsuits brought to him, it's making his voting record more controversial, Blackman adds.

"I think by virtue of the attorney generals' form selection," he says, "Judge O'Connor's had a greater share than average of hot-button issues."

However, Blackman says he is concerned that criticisms of controversial opinions are increasingly shifting toward the judges who issue the opinions — instead of toward the decisions themselves.

"President Trump does this all the time," Blackman says. "Politicians do it all time. And usually this happens to Supreme Court justices, but here it is being done to a district court judge in Fort Worth — who, 99 percent of his docket no one will even know about."

No matter how controversial O'Connor's ruling on the health care law, Blackman says, the decision over the Affordable Care Act will now pass to another judge, as the case moves on to a higher court.

This story is part of a reporting partnership with NPR, KUT and Kaiser Health News.

MARY LOUISE KELLY, HOST:

It was last week that a ruling by a federal judge in North Texas raised questions about the future of the Affordable Care Act. Judge Reed O'Connor sided with a group of Republican state officials who had challenged the law. Many court-watchers say the ruling was predictable and say that's why the case was before Judge O'Connor in the first place. Ashley Lopez of KUT in Austin reports.

ASHLEY LOPEZ, BYLINE: O'Connor's judgment was sweeping. It said the entire health care law became invalid when Congress zeroed out the tax penalty for people who don't have health insurance that's known as the individual mandate.

And O'Connor's decision has been pretty controversial, even among conservative legal scholars like Josh Blackman, a professor at the South Texas College of Law in Houston.

JOSH BLACKMAN: I think he went too far in rejecting the entire law. I think he could have stopped short and simply severed the Obamacare mandate.

LOPEZ: And while O'Connor's decision may seem a bit extreme to some legal scholars, what it is not is surprising. Justin Nelson, a law professor at the University of Texas at Austin, says if you know anything about O'Connor's past rulings, this was predictable.

JUSTIN NELSON: In case after case, what he has shown is that he has tended to side with the Republican attorneys general who are bringing ideological suits.

LOPEZ: Nelson recently ran an unsuccessful campaign to oust Texas Attorney General Ken Paxton. Paxton led this multistate legal challenge to the health care law. Nelson says Paxton and the other Republican attorneys general have filed lawsuits in the U.S. District Court for the Northern District of Texas because they know there's a good chance they'd get O'Connor as the judge.

NELSON: Judge O'Connor has been the go-to judge for Ken Paxton and Republican attorneys general who want to file ideological suits in any court across the country. Reed O'Connor is their best shot to get a ruling that they like.

LOPEZ: O'Connor was a Republican staffer on Capitol Hill before he was appointed by George W. Bush. So far, he's had to weigh in on a couple of contentious issues. For example, O'Connor is known for striking down an Obama-era rule protecting transgender students. In that case, he also sided with Ken Paxton, who filed that legal challenge as well, says Nelson.

NELSON: They've done this over and over again on the hope that Judge O'Connor would rule on behalf of an ideological agenda. And I don't think that is proper. I don't think that's right for what we think is the basis for what we hope is the rule of law in that justice is blind.

LOPEZ: Paxton has filed lawsuits challenging Obama-era immigration laws in other courts, including a court in South Texas that also has a reliably conservative judge on the bench. But conservative legal scholar Josh Blackman says he thinks this is all overblown.

BLACKMAN: All lawyers generally file the case where it leads to the best chance of success. And to an extent that the criticism - that's a criticism of the attorney general and not of the judge. A judge doesn't control which cases come to him.

LOPEZ: And Blackman says because O'Connor is getting a lot of ideological lawsuits brought to him, it's making his voting record more controversial.

BLACKMAN: I think by virtue of the attorney general's form selection, Judge O'Connor's had a greater share than average of hot-button issues.

LOPEZ: Ultimately, though, one of Blackman's biggest concerns here is that criticisms of controversial opinions are increasingly shifting toward the judges who issue the opinions and less towards the decisions themselves.

BLACKMAN: You know, President Trump does this all the time. Politicians do it all the time. And usually, this happens to Supreme Court justices. But here, it's being done to a district court judge in Fort Worth who, 99 percent of his docket, no one will ever even know about.

LOPEZ: And ultimately, Blackman says, no matter how controversial O'Connor's ACA decision is, it is now up to the next judge who will inevitably hear the case as it moves on to a higher court. For NPR News, I'm Ashley Lopez in Austin.

KELLY: And that story is part of a reporting partnership with NPR, KUT and Kaiser Health News.

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