With the fight over Supreme Court Justice Brett Kavanaugh behind them, Republicans on Wednesday restarted the Senate Judiciary Committee’s push to confirm lower court judges with a hearing on a pair of nominees that Democrats staunchly oppose for their legal work on health care, LGBT rights and other issues.
The hearing featured almost everything Democrats have complained about the confirmation process during President Donald Trump’s administration — including scheduling more than one circuit court nominee in a single hearing and doing so over the objections of a home state senator.
This time, nominees from Ohio to the U.S. Court of Appeals for the 6th Circuit are opposed by home state Sen. Sherrod Brown, who spoke against them at the hearing for their previous legal work and criticized the White House for ignoring the state’s bipartisan judicial selection commission.
“I have significant concerns about the ability of Chad Readler and Eric Murphy to be fair-minded and impartial judges, and I cannot support nominees who have actively worked to strip Ohioans of their rights,” Brown said. “And that’s exactly what Mr. Murphy and Mr. Readler have done, on everything from health care to voting rights, from marriage equality to public education.”
Readler’s work as a senior Justice Department official in the past two years touched many of the Trump administration’s most contentious legal battles. Brown said that “perhaps worst of all” was Readler’s role when he filed a brief in a Texas lawsuit that challenges the 2010 health care law’s protections for pre-existing conditions.
“Three career attorneys withdrew from the case — and one went so far as to resign altogether — in objection to the Department of Justice’s unprecedented actions,” Brown said. “Our Republican colleague Senator [Lamar] Alexander called the brief ‘as far-fetched as any he’s ever heard.’”
Readler was nominated for the court the day after the brief was filed. He told the committee that the policy decision and the legal strategy came from Attorney General Jeff Sessions, who was clear that the law was unconstitutional after part of last year’s tax overhaul effectively eliminated the penalty most Americans faced for not having health insurance coverage.
And he said his name appeared on all briefs from DOJ’s Civil Division and he can’t oversee them all, but he did review the health care filing.
Democratic Sen. Patrick J. Leahy of Vermont asked Readler if he stands by the position that the 2010 tax law can’t be reasonably defended. “It is my position to advocate for the United States,” Readler said. “We would not make an argument if I thought it was unethical or frivolous.”
Democratic committee members also peppered him about his role overseeing briefs against the constitutional structure of the Consumer Financial Protection Bureau, and defending the Trump administration’s travel ban and policy to separate migrant children from parents at the U.S.-Mexico border.
Sen. Richard J. Durbin described an immigration court hearing with a 2-year-old girl and a 4-year-old boy who appeared before a judge after they had been separated from their parents, and asked Readler if he was bothered by the consequences of the policy he defended.
Readler, as he did with questions about the other cases, did not directly answer Durbin’s question but said the administration made the policy and his division just represented that in court.
“I’m disappointed it didn’t trouble you,” the Illinois Democrat said. “I wish it had.”
Murphy got questions about his role as Ohio’s solicitor general, when he defended the state’s same-sex marriage ban and successfully defended the state’s law for removing voters from registration rolls, both at the Supreme Court.
Trump has appointed a record number of appeals court judges on top of two Supreme Court appointees in his first two years in office. Majority Leader Mitch McConnell has made appeals court confirmations a priority this year.
Wednesday’s hearing, which also featured three district court nominees, was the first after Kavanaugh’s confirmation Saturday.
Sen. Mike Lee of Utah, who presided over the hearing in the absence of Chairman Charles E. Grassley of Iowa, defended the Republicans holding the hearing, but saved his most direct comments for the Kavanaugh confirmation, saying the panel needs an “honest reckoning about what happened.”
“We have just concluded a divisive and, if you haven’t noticed, fairly brutal confirmation process for a vacancy that we just filled on the Supreme Court,” Lee said. “We have through that process inflicted real harms on real people. We have also inflicted real harms on the Senate and the judiciary in the process of that.”
Watch: Just Some of the Noteworthy Moments During Kavanaugh’s Confirmation Process