We Need to Talk About the Shady Situation in the Sixth Circuit Court
What do state efforts to defund Planned Parenthood, Senate Leader Mitch McConnell’s obstructionist tactics, and President Trump’s horrible judicial nominations all have in common? A whole lot, it turns out.
Last month, a majority of the Sixth Circuit Court of Appeals ruled that Ohio can cut state funds to Planned Parenthood. In the case, Planned Parenthood challenged Ohio’s law denying entities from receiving state government funding for health programs if the entity performs or “promotes” abortion, or is an affiliate of an entity that performs or “promotes” abortion. The health programs at issue here have nothing to do with abortion; the state law would force Planned Parenthood either to stop performing abortions in order to continue receiving the health funding, or reject the funding in order to keep providing abortions, leaving Ohioans without critical preventive care they need. This case is an example of the many approaches anti-abortion policymakers are using to eliminate access to abortion, including targeting health care providers just because they provide abortion care. In a 11-6 decision, a majority of the Sixth Circuit reversed a unanimous decision from last year by a three-judge panel on the Sixth Circuit that had held that the law was unconstitutional.
So, what does this decision have to do with McConnell obstructionism and Trump’s nominees? Let’s take a closer look at the judges deciding the case. Of the seventeen judges deciding the Ohio case, four of them were Trump appointed judges: Judges Thapar, Bush, Larsen, and Nalbandian. All four found in favor of Ohio’s law. If the Senate hadn’t rushed those judges through, as they are doing with Trump judges at an alarming rate, that would have left the decision at 7-6, so seemingly the same outcome, right?
Not necessarily. Keep in mind that during the last two years of Obama’s presidency, Republicans, under Mitch McConnell’s leadership, prevented President Obama from filling many judicial vacancies- including a vacancy on the Sixth Circuit Court of Appeals. Obama’s nominee, Lizabeth Tabor Hughes, never received a hearing because Mitch McConnell and Rand Paul refused to return blue slips for her nomination. (Traditionally, the blue slip policy allowed home-state senators to stop a judicial nominee). In other words, if Senate Republicans hadn’t blocked Obama’s nominee, and that nominee voted to strike down the law, then the Sixth Circuit would have been split 6-6, and the panel decision finding the law unconstitutional would stand.
McConnell’s obstructionist tactics were rewarded when – after blocking Obama’s nominee – Trump nominee Judge Amul Thapar was confirmed into that seat. Another irony: Senate Republicans have now abandoned the blue slip practice for the sake of confirming as many Trump nominees as possible. These tactics are working- -in the last two years, Trump has filled 20% of the nation’s appellate court judgeships. Trump has exceeded the pace of the last five presidents and consequently is stacking the courts across the country with lifetime appointees who will have lasting consequences on our civil rights and fundamental freedoms.
But wait, there’s more to this story. Earlier this month the Senate confirmed two new Sixth Circuit judicial nominees, Eric Murphy and Chad Readler, despite strong opposition by home state Senator Sherrod Brown. Eric Murphy was Ohio’s state solicitor who defended Ohio’s effort to defund Planned Parenthood. After the three-judge panel determined the law was unconstitutional, it was Murphy who petitioned for the rehearing in front of the full Sixth Circuit. And Chad Readler? Well, he was the acting Assistant Attorney General who signed the Trump Administration’s amicus brief in this same case. Spoiler alert: this brief supported Ohio’s effort to defund Planned Parenthood. Murphy’s and Readler’s reward for trying to restrict reproductive rights and defund Planned Parenthood in Ohio? Lifetime positions on the same Court of Appeals where all of this has been happening.
This is what Trump’s court-packing agenda is all about. Trump is nominating individuals to be judges who have a record of supporting and advancing his extremist agenda. These judges then, in turn, render court decisions that solidify that agenda, including undermining a woman’s right to reproductive health care. We cannot sit idle and watch as Trump completely alters the make-up of the federal judiciary with judges who are determined to deny us equality and freedom. Our lives and our future are at stake.