Court Packed with Democrats Rules with Obama on Obamacare

Democracy Alliance-backed effort to stock D.C. circuit with Dem-appointed judges pays off

The District of Columbia Court of Appeals /
November 17, 2014

An appeals court packed with progressive judges ruled last Friday in favor of a contraception opt-out clause opposed by some religious groups, handing a victory to the Obama administration.

The Washington Free Beacon reported in August on an effort by progressive judicial activists to fill the U.S. Court of Appeals for the District of Columbia bench with left-leaning judges, funded in part by a dark-money network of Democratic donors called the Democracy Alliance.

Since then, the D.C. circuit court has been at the frontlines of several contentious debates over Obamacare, including the court’s September decision to rehear a case challenging a tax credit provision in the health care law.

But last Friday’s ruling is the latest indication of how newly appointed Democratic judges are impacting policy through the D.C. circuit court.

A three-judge panel upheld a provision backed by the Obama administration that would have the federal government pay for contraception coverage for employees of religious nonprofit groups that are opposed to funding the coverage directly through their insurance providers.

Some religious employers object to this plan, arguing that they would still be facilitating the purchase of contraception that they are religiously opposed to by offering insurance coverage to their employees.

The three-judge panel included Judge Cornelia Pillard and Judge Robert Wilkins, both recent Obama appointees who were opposed by Senate Republicans. The third member, Judge Judith Rogers, was appointed by President Clinton in 1994.

Pillard and Wilkins were appointed over Republican objections last year after Senate Democrats used the "nuclear option" to repeal filibuster rules that allowed the GOP minority to block judicial nominations.

At a Democracy Alliance meeting in Chicago last spring, a progressive activist group called the American Constitution Society took credit for helping secure filibuster reform in the Senate.

In a private presentation to the donor network, the ACS said it had met its "performance goals," including "advanc[ing] filibuster reform" by "highlighting [the] issue in national media" and "successfully leveraging attention to create outcry for confirmation of long-stalled D.C. circuit nominees," according to documents obtained by the Free Beacon.

It also noted that three of the judges confirmed to the D.C. circuit court were ACS members.

The ACS is one of dozens of left-leaning activist groups affiliated with the Democracy Alliance, which connects top Democratic donors to liberal organizations. The Alliance does not publicly disclose its members or the recipients of their donations.

The D.C. circuit court came under fire in September, after it announced it would rehear en banc a challenge to an Obamacare provision that would issue taxpayer-funded subsidies for individuals in states that had set up health care exchanges.

A D.C. circuit panel of judges had already ruled against the Obama administration on the Halbig v. Burwell case, contradicting another ruling by the 4th circuit court of appeals that backed the administration. The split between the circuits made it likely the issue would be taken up by the Supreme Court.

However, the D.C. circuit’s decision to hold a new hearing before the entire court—which now has a majority of Democrat-appointed judges after filibuster reform—was seen by many conservatives as a way to prevent the Obamacare challenge from reaching the Supreme Court.

"You’d no longer have a circuit split, and therefore you’d have a less of a chance the Supreme Court will review," Cause of Action executive director Daniel Epstein told the Free Beacon in August.

Despite the D.C. circuit’s decision, the Supreme Court announced earlier this month that it would hear the Obamacare challenge anyway. The news prompted the D.C. circuit to postpone its rehearing until the Supreme Court issues a ruling.

Religious groups opposed to the D.C. circuit’s ruling on the contraception challenge last Friday said they would appeal the decision to the Supreme Court as well.